| Ala. | Dec 18, 1913
— Appellee, a woman, sued appellant for an assault and battery by one of- its agents in the attempt of the latter to collect a bill for the sale of a sewing machine.
The complaint followed the Code form but, not being content with that, set out a great deal of the evidence by which plaintiff proposed to prove the facts necessary to support the action. This is a bad form of pleading and is not to be encouraged. The pleadings should allege the facts only which are necessary and proper to
The defendant also demurred to the complaint on the same ground, which demurrer was properly overruled. As we have repeatedly held, such matter is not ground of demurrer; but the complaint should be purged of such matter by motion to strike. The particular matter here alleged, while not necessary or proper in the pleadings, was admissible in evidence under proper allegations ; and as the evidence itself, some of it in hsec verba, was alleged, the plaintiff, was not only authorized to prove it but was required to prove that which was descriptive of the particular offense or else fail on account of the variance.
There was therefore no error in overruling defendant’s motion to exclude the evidence. When the unnecessary allegation is improper as proof as well as improper as pleading, and objection is interposed to the proof, then it is error not to exclude the evidence; but when, as here, it is proper as proof but not proper as pleading, it is of course not error to allow the proof, though the matter could and should have been expunged from the record proper on defendant’s motion.
The defendant attempted to set up, as a defense to the action, a. Avaiver of the right to maintain the action.
The record teems with assignments of error. The defendant seems to have objected- to nearly all the evidence offered by the plaintiff, interposing objections to nearly all the questions propounded to each witness, then moving to exclude the answer, and reserving an exception to each adverse ruling. Many of these objections and exceptions are too frivolous and captious to merit treatment or consideration. We will, however, treat those which merit consideration.
There was no error in declining to allow the witness to testify to the mental condition or the physical appearance of the woman he saw at the house in which the alleged assault and battery occurred. The witness had stated that he did not know whether it was the plaintiff whom he saw; and of course it was wholly irrelevant and immaterial to show the appearance of a third person who was not shown to be a party, a witness, or one interested in the suit. It was likewise wholly unimportant to prove the color of the horse driven by defendant’s agent on the occasion in question, or the names of the parties for whom the witness Johnston was reading meters. It was not shown how such evidence would throw any light upon the disputed issues or affect the credibility of any of the witnesses. The evidence was offered, no doubt, to show that the plaintiff, on the occasion in question, was so angry, excited, frantic, that she could not and did not observe all that happened and did not relate accurately that which did happen. In other words, the evidence was offered to affect the credibility of the plaintiff as a witness in her
We are of the opinion, however, that the court erred to the prejudice of defendant in declining to allow the defendant to prove by Hr.. Ward the physical condition of the plaintiff when shAhad had a miscarriage, about alleged assault. The plaintiff was allowed to prove that\she had suffered a miscar-. riage a few months after the 'feyne of the alleged assault and battery, and to prove by an expert physician, Dr. Hogan, who had then attended her, that the miscarriage could have been, and probably was, caused or induced by the assault and battery. It was also shown that the plaintiff had suffered other miscarriages, which were not induced or caused by fright or excitement, as testified to by her and Dr. Hogan. Dr. Ward was shown to have attended her, as physician, on two occasions of miscarriage, including the one of the miscarriage which she claimed to have been induced by or to have resulted from the alleged wrongs of the defendant’s agent.
We think it was therefore competent for the defendant to prove that other miscarriages had happened at about the same period of gestation as the one in question, and that the plaintiff’s physical and mental condition were about the same on each occasion. This evidence, we think, would have a tendency to prove that the miscarriage was due to causes other than the wrongs alleged and to disprove the testimony of the plaintiff and the opinion of Dr. Hogan that the miscarriage was or might have been induced by the assault and battery alleged,
There was evidence offered by the defendant to prove, or having the tendency to prove, that the miscarriage was due to natural or physical causes for which the defendant was not liable in damages (in other words, that it was not the result of the assault and battery alleged to have been committed against plaintiff by defendant’s agent) ; but the court declined to allow its introduction. We think that this evidence was proper for the consideration of the jury, in connection with all the other evidence. The trial court may have erred in its rulings declining to allow the defendant to make other proofs at certain stages of the trial; but these errors were subsequently cured, except in the instances above pointed out.
The excerpts from the oral charge, standing alone, would be erroneous; but, taken in connection with other portions of the charge and with the written charges, we do not think that they or either one of them was erroneous in such sense or degree as to1 authorize a reversal. Under the evidence in this case, it was a question for the jury, whether or not the assault was proven as alleged; there was certainly evidence tending to prove each material allegation; and the amount of damages, if any were recoverable, was also a question for the jury. The court did not err, therefore, in refusing to instruct affirmatively for the defendant in any of the various forms in which such charges were requested.
As to what acts will constitute a battery in a case like this, the rule is well stated by Mr. Cooley in his work on Torts. He says: “A successful assault be-''1 comes a battery. A battery consists in an injury actually done to the person of another in an angry or revengeful or rude or insolent manner, as by spitting in the face, or in any way touching him in anger, or violently jostling him out of the way, or in doing any intentional violence to the person of another. The wrong here consists, not in the touching, so much as in the manner or spirit in which it is done, and the question of bodily pain is important only as affecting the damages. Thus, to lay hands on another in a hostile manner is a battery, although no damage follows; but to touch another, merely to attract his attention, is no battery and not unlawful. And to push gently against one, in the endeavor to malte way through a crowd, is no battery; but to do so rudely and insolently is and may justify damages proportioned to the rudeness. Where the defendant was licensed to- enter the plaintiff’s outer door for the purpose of delivering milk and, in disregard of a command not to enter his sleeping-room, did so and took hold of the plaintiff to wake him up in order to present a bill, it was held to be an as-. sault and battery.” — Volume 1, pp. 281, 282.
Under the evidence, we think this was certainly a case for the jury to say whether or not there had been an assault and battery as alleged. For the errors point
Reversed and remanded.