Opinion
7 Div. 341.
November 2, 1922.
Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.
E. O. McCord Son, of Gadsden, for appellant.
One who enters upon the premises of another without notice not to enter must be given notice to retire before expulsion; but notice to retire having been given, the owner or person in possession has the right to eject the trespasser, using no more force than is reasonably necessary. 202 Ala. 351, 80 So. 433. The burden of showing freedom from fault in bringing on the difficulty was not on the defendant. 154 Ala. 639, 45 So. 641. A plaintiff cannot frame his declaration, so as to leave the kind of action uncertain. 61 So. 299; 57 Fla. 87, 49 So. 1024; 171 Ala. 274, 55 So. 185. No party can claim punitive damages as a matter of right. 15 Ala. App. 519, 74 So. 82.
W. J. Boykin, of Gadsden, for appellee.
Exemplary damages may be recovered, if warranted by the evidence under a complaint following the Code form. 150 Ala. 402, 43 So. 574; 130 Ala. 334, 30 So. 456, 54 L.R.A. 752, 89 Am. St. Rep. 43. Special damages were recoverable under count 2. 150 Ala. 402, 43 So. 574. If there were improper elements of damages claimed in the second count, demurrer was not the proper way to remedy the defect, but the proper method is by motion to strike such objectionable parts, objection to the evidence or requested instructions. 59 Fla. 462, 51 So. 929. Charges 1 to 7, requested by the defendant, were properly refused. 15 Ala. App. 519, 74 So. 82; 11 Ala. App. 125, 65 So. 860; 145 Ala. 678; Acts 1915, p. 815.
The action is for an assault and battery. Count 1 is in the code form, and under it there could be a recovery of punitive damages, though not specially claimed. Mitchell v. Gambill, 140 Ala. 316, 37 So. 290; Wilkinson v. Searcy, 76 Ala. 176; Standard Oil Co. v. Davis, post, p. 565, 94 So. 754.
Count 2 contains additional allegations of the use of insulting language —
"* * * greatly humiliating, wounding, and bruising and maltreating the plaintiff, causing her much mental pain and anguish [and] to suffer from severe wounds and bruises."
Under this count there could be a recovery of punitive damages, and also of compensatory damages for the injuries specially alleged. This count is not subject to demurrer on the theory that it does not clearly show that the special injuries alleged were the result of the battery rather than of the insulting language. "Wounding, and bruising and maltreating" cannot be imputed to the insulting language referred to; and, even if the complaint of humiliation in the presence of other people might be referable to that cause, and therefore not a proper element of damage, it should have been eliminated by motion to strike, or by objection to the evidence, or by instructions to the jury, as has been frequently declared by our decisions.
The trial judge properly excluded defendant's question to plaintiff's mother on cross-examination:
"Is it not true that Mrs. Powell [the defendant] had asked you all to vacate this room, some weeks or a few days before this thing occurred?"
Its relevancy is not apparent, and it could have no legal bearing on the issues in the case.
Whether or not a suit brought by plaintiff against another person for injuries suffered in an automobile collision several months previous was still pending was clearly irrelevant, and the question was properly excluded.
Nor was it proper for defendant to show by a police officer that he had searched the hotel room and the restaurant of the Wests, shortly before this altercation, though that occurrence might have prompted the conversation between defendant and plaintiff's mother immediately preceding the alleged assault on plaintiff, since it could have no legitimate bearing on the issues in the case.
Charge No. 1, refused to plaintiff, was fairly covered by the oral charge, and its refusal was not prejudicial.
Charge 2, for the same reason, was refused without error. It was, moreover, erroneous, since notwithstanding the fact that plaintiff provoked and brought on the difficulty, and attacked defendant first, if so, she could nevertheless recover if defendant retaliated excessively. Bynum v. Jones, 177 Ala. 431, 59 So. 65; Abney v. Mize, 155 Ala. 391, 46 So. 230.
Charges 3 and 4 were properly refused, since the jury might, under the evidence, have awarded punitive damages under either count, and also special damages under count 2.
Charges 5 and 6 were on the effect of evidence, and for that reason were properly refused; moreover, the status of plaintiff and her family as renters of a room in the hotel had no bearing on the issues presented by the pleadings and evidence.
Charge 7 was properly refused as being abstract, if not otherwise bad, since the evidence had no tendency to show that plaintiff "was interfering with the business of defendant in the management or operation of her hotel."
We find no prejudicial error in the record, and the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.