Summary
explaining that if law enforcement officer has right to arrest and detain plaintiff, he cannot use more force than is reasonably necessary to accomplish that purpose
Summary of this case from Phillips v. IrvinOpinion
7 Div. 555.
February 16, 1939. Rehearing Denied March 16, 1939.
Appeal from Circuit Court, Etowah County; J. H. Disque, Jr., Judge.
Rains Rains, E. L. Roberts, and Wallace D. Walters, all of Gadsden, for appellant.
Notwithstanding the general rule that whatever is to be shown in justification must be specially pleaded, matters which do not constitute a complete defense may be introduced in evidence in mitigating damages. 6 C.J. Sec., Assault and Battery, p. 866, § 44(a). An officer who has legal custody of a person charged with an indictable offense is subject to penalty if, through negligence, he allows such person to escape. Code, 1923, § 4007. Provocation by the acts and conduct of the assaulted party of the assault and battery committed on him may be considered in mitigation of damages. 5 C.J. 675, § 115(d); 6. C.J. Sec., Assault and Battery, p. 807, 808, § 17a; Mitchell v. Gambill, 140 Ala. 316, 37 So. 290; Keiser v. Smith, 71 Ala. 481, 46 Am.Rep. 342; Empire Clo. Co. v. Hammons, 17 Ala. App. 60, 81 So. 838; Jones v. Bynum, 189 Ala. 677, 66 So. 639; Lunsford v. Walker, 93 Ala. 36, 8 So. 386.
Inzer Martin and George Murphy, all of Gadsden, for appellee.
It is a question for the jury whether an officer used more force than was necessary to accomplish an arrest. Patterson v. State, 91 Ala. 58, 8 So. 756. In civil actions for assault and battery the defense of self defense must be specially pleaded. Morris v. McClellan, 169 Ala. 90, 53 So. 155. And so of defenses in justification. Hart v. Jones, 14 Ala. App. 327, 70 So. 206. Provocation in action for assault and battery may be considered only in mitigation of punitive damages, and cannot be considered in mitigation of actual damages sustained. Gissendanner v. Temples, 232 Ala. 608, 169 So. 231. Refusal of a written charge, although a correct statement of law, is not cause for reversal where it appears that the same rule of law was substantially and fairly given to the jury in the oral charge or in special charges given. Code 1923, § 9509. If there had been error in overruling objection to the question to the witness Dr. Cross, the answer was beneficial to defendant and could not work a reversal.
This is a civil action for an assault and battery and the only plea interposed by the defendant was the general issue and which does not ordinarily include justification or self defense which should be specially pleaded. Morris v. McClellan, 169 Ala. 90, 53 So. 155; Hart et al. v. Jones, 14 Ala. App. 327, 70 So. 206.
It seems, however, that although there was no special plea of justification or self defense, these issues were fully gone into by the unchallenged evidence and covered by the charges, and, this being the case, this court will review the rulings relating thereto. Nashville, Chattanooga St. Louis Railway Co. et al. v. Hammond et al., 104 Ala. 191, 15 So. 935; Kirby v. Davis, 210 Ala. 192, 97 So. 655.
The trial court committed no reversible error in ruling on the evidence. Whether the question to Dr. Cross as to the infliction of the injury with a "black-jack" was error or not, his answer was more favorable than harmful to the defendant.
Conceding that the defendant had the right to arrest and detain the plaintiff, a question probably for the jury, yet he had no right to use more force than was reasonably necessary to accomplish this purpose and the trial court properly submitted this question to the jury. Patterson v. State, 91 Ala. 58, 8 So. 756.
Defendant's refused charges B, C and E, whether good or not, were in substance and effect covered by the oral charge of the court.
Defendant's refused charge, X, was properly refused. If not otherwise faulty, it should have been confined to punitive damages. Gissendanner v. Temples, 232 Ala. 608, 169 So. 231.
The trial court did not err in overruling the motion for a new trial and the judgment of the circuit court is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.