Hyde v. Cain

47 So. 1014, 159 Ala. 364, 1908 Ala. LEXIS 663

• Court: Supreme Court of Alabama
• Decided: June 30, 1908
• Status: Published

Opinion

McCLELLAN, J.

Action for damages, in code form, for assault and battery. The only error assigned is predicated upon the giving at the request of plaintiff (appellee) of this charge, viz.: “The court charges the jury, if the jury believe the evidence, they must find the issue in favor of the plaintiff.” The pleas were general issue and special plea 4 (to which demurrers were overruled), as follows: “(4) That the plaintiff, at the time of the alleged assault upon her, ivas on the premises of defendant, and that defendant ordered or requested her to leave, which she failed to do, and upon such failure defendant attempted to eject her or make her leave, and only used such force as was reasonably necessary to accomplish same, and that, if any assault was committed on plaintiff, it was the said efforts of defendant to eject her as aforesaid.” The issues presented are apparent.

An assault and hatetry is described in Jacobi’s Case, 138 Ala. 17, 32 South. 163, thus: “Any touching by one person of the person of another in rudeness or in anger is an assault and battery. * * *” . In Engelhardt v. State, 88 Ala. 103, 7 South. 154, this language is approvingly quoted: “A battery is not necessarily a forcible striking with the hand, or stick, or the like, but includes every touching or laying hold (however trifling) of another’s person, or his clothes, in an angry, revengeful, rude, insolent, or hostile manner.” Since a battery always includes an assault, the uncontroverted testimony in this case would have warranted the court, on the inquiry presented by the complaint alone, in giving the affirmative charge for the plaintiff. But that pleading Avas not the only source of issue in the cause. The fourth plea sought to justify the assault and battery upon the right of one to eject a trespasser from his premises, AAdiich embraces the obligation to effect such a lawful purpose by use of no more force than was necessary thereunto. Pretermitting any other consideration in respect to the plea, this was, under the whole evidence adduced on the trial, a question for the jury; and the charge quoted before erroneously deprived the defendant of that right.

The judgment is reversed, and the cause is remanded.

Reversed and remanded.

Tyson, C. J., and Haralson, Simpson, Anderson, and Denson, JJ., concur.