Jones v. Bynum

SOMERVILLE, J. Plaintiff’s son was allowed to testify as' to the details of a dispute which occurred between the defendant and himself on the day before the fight between the plaintiff and the defendant, including threatening conduct and language on the part of the defendant. This testimony was foreign to the issues on trial, and should have been rejected. It was referred to by plaintiff’s counsel in' argument, with the approval of the court, as the beginning of the difficulty by the defendant, and it was probably prejudicial to him. Evidence of the defendant’s bad character for peace and quiet was not admissible upon any of the issues involved. It was erroneously admitted, but was after-wards excluded by the court. In general, such an ex680 elusion cures the original error; but it is the better practice in all cases to also instruct the jury not to consider such evidence for any purpose. We have examined the other numerous assignments relating to the admission of testimony, and do not find any prejudicial error among- them. The court properly instructed the jury that, if the defendant assaulted the plaintiff because of “words only” used by the plaintiff to the defendant, they must find for the plaintiff. In civil actions, the abusive or offensive language of the plaintiff at or about the time may mitigate the fault of the defendant, but it cannot justify or excuse it so as to prevent some recovery of damages, albeit only nominal.—Keiser v. Smith, 71 Ala. 481, 46 Am. Rep. 342. “One who is lawfully in charge of premises, and has requested another to leave, whom he had a right so to request, may lawfully use so much force as is necessary to remove such other, after allowing him a reasonable time to depart.”—3 Cyc. 1045, 1046, and cases cited; Motes v. Babes, 75 Ala. 374. The defendant had the advantage of this ground of defense under the several charges given to the jury at his request. The refusal of charge 2 was therefore not prejudicial in any event. It is to be. noted, however, that the defendant was not on his own land, and was not in possession of'the land upon which he says the plaintiff advanced to attack him. And, again, it is clear, even from the defendant’s own account of the fight, that he attacked the plaintiff for calling him bad names, and in no sense for the purpose of ejecting him with reasonable force from the premises. The circumstances therefore lacked two of the essential elements [681] of a lawful defense of one’s premises against a trespasser, and, as applied to the evidence, these charges might well have been refused. Charge 1 is bad. for omitting the predicate of the defendant’s freedom from fault in provoking the difficulty — a jury question under the evidence. Charge 3 is argumentative, involved, and misleading; and it is defective in justifying the defendant’s battery on the plaintiff by reason of “his acting as if he then and there intended to assault and heat the defendant,” without predicating the defendant’s bona fide belief in the imminence of such an assault. For the error pointed out, the judgment will be reversed and the cause remanded for another trial. Reversed and remanded. Anderson, C. J., and Mayfield and Gardner, JJ., concur.