Abney v. Mize

Decided April 9, 1908

Supreme Court of Alabama · decided 1908-04-09

1. Assault and, Battery; Owil LiahiUty; Action; Pleading. — To ■pleas of justification and self defense, setting forth the ingredients thereof, plaintiff replied that defendant committed the assault and battery to a greater extent and with more force than was reasonably necessary for the purposes in the pleas mentioned. Held, such replication is good as an answer to the plea, and not subject to demurrer, but was a general traverse of the allegation of the pleas that no more force was used than necessary. ' 2. Same; Trial; Instruction. — An instruction that if plaintiff provoked and brought on the difficulty he cannot recover punitive damages, is erroneous. 3. Same. — A charge asserting that if plaintiff provoked or brought on the difficulty and if it would not have occurred but for the wrongful conduct of plaintiff, then he cannot recover, is erroneous. 4. Same. — A charge setting up the ingredients of self defense and hypothesizing a finding against the plaintiff upon the facts stated, but which fails to be hypothesized upon the failure of defendant to use no more force than was necessary for self protection, is erroneous and properly refused. 5. Same.- — A charge asserting that if one of the defendants to the -action aided, abetted or encouraged the other defendant in entering into or continuing an unlawful assault on plaintiff, that then he would be responsible for whatever such other defendant did in the-furtherance of such assault, though he may not have explicitly encouraged, aided or abetted any one particular act of such other defendant, is a proper statement of the law.

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1908-04-09

How this case has been cited

Cited by 13 later decisions — most recently August 2010

9 state decisions

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ANDERSON, J.

¶1The plaintiff’s replication to the special pleas was a good answer thereto, and not subject to the demurrers. Moreover, it was but a general traverse as to pleas 4 and 5, as each of said pleas aver that no more force was used than was- necessary, and the replication was but a denial of this averment.

¶2Charges 1 and 2, refused the defendants, are so manifestly bad that a discussoin of them is unnecessary.

¶3Charge 4, requested by the defendants, was properly refused. If not otherwise bad, it invades the province of the jury, and instructs a finding for the defendants, although more force may have been used than was necessary for self-protection. All of the elements of self-defense set up in the charge may have existed, yet it was for the jury to determine if the force used was excessive.

¶4Charge A, given for the plaintiff, asserts the law.

¶5The judgment of the circuit court is affirmed.

Tyson, C. J., and Anderson and McClellan, JJ., concur.