McMillan v. Aiken, 205

track (to Mrs. Horton's or Mrs. Oster's-who charges requested. "live together") a few minutes before the Ala. 35, 40, 88 So 135. train was started. Several assignments of [6] There was no error in refusing defenderror challenge the argument of counsel for ant's written charge A. Its refusal may be plaintiff. They will be considered as pre-rested on the use of the indefinite and comsented by counsel.

parative words "a small number of persons," and for this reason it was misleading. However, the matter sought to be embraced therein was covered by the charges given by the court. Refused charge 1-A, made the subject of argument, is not contained in the record. If refused charge 1-Q was intended, under the whole evidence and the only count that went to the jury, the inferences of fact that might be drawn as to Manderson's conduct or failure to keep a proper lookout or to signal were for the jury. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135. However this may be, we cannot consider refused charge 1-Q.

[5] The suit was under the homicide statute. When punitive damages are awarded, the purpose of the statute is to prevent homicides, and is not for the purpose of awarding compensation. .Authorities collected in Alabama Power Co. v. Stogner, 208 Ala. 666, 669, 670, 95 So. 151 et seq. The preliminary observations of counsel in the opening argument for plaintiff were a proper statement of the nature and general effect of the suit. However, the concluding argument of plaintiff's counsel contained the statement that he had "an especially selfish idea in it, my little folks live in Greene county," which was improper, and was withdrawn [7] Charge A-4, refused to defendant, and excluded from the jury. During the ignored the evidence tending to show the closing argument for plaintiff further re- general or customary use of the track of demarks of plaintiff's counsel were objected to, fendant as a walkway by the public at the withdrawn, and excluded from the jury by time and place of the homicide, and evidence the court. At the conclusion of this argu- from which inferences might be drawn that ment defendant's counsel moved a discontin- the train was proceeding at a dangerous uance of the cause, based on said several rate of speed in excess of the ordinance of arguments of plaintiff's counsel we have the town of Epes. Assignments of error as noted above. In overruling the motion no re- to refused charges E, HH, M, and 1-N are versible error intervened. The remarks not insisted upon in argument of counsel. which were improper were withdrawn and Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 excluded. This may be effectively done, So. 158. since these remarks did not come within the class declared ineradicable by withdrawal or instruction of the court. Moulton v. State, 199 Ala. 411, 74 So. 454; Anderson v. State, 209 Ala. 36, 95 So. 171; Alabama Power Co.

v. Goodwin, 210 Ala. 657, 99 So. 158; Davis v. Quattlebaum, 210 Ala. 242, 97 So. 701;

[8] Written charges should be given or refused in the terms in which they are written, and should not be qualified by oral or written instructions. However, where given charges are susceptible of two constructions, explanatory charges may be requested and given without the commission of reversible

error. Instructions which define terms held

plaintiff's request was proper.

The motion for a new trial was properly overruled.

T. R. N. Co. v. Walls, 209 Ala. 320, 96 So. 266; Davis v. State, 209 Ala. 409, 96 So. 187; not objectionable as qualifying written reMobile L. & R. Co. v. Gallasch, 210 Ala. 219, quested instructions. B. S. Ry. Co. v. Har97 So. 733; B. T. L. & P. Co. v. Gonzalez, rison, 203 Ala. 284, 82 So. 534; Boyette v. 183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543. Bradley (Ala. Sup.) 100 So. 647; Louis Pizitz In Metcalf v. St. L. & S. F. R. R. Co., 156 D. G. Co. v. Cusimano, 206 Ala. 689, 91 So. Ala. 240, 47 So. 158, the plaintiff sought a 779; Callaway & Truitt v. Gay, 143 Ala. 524, reversal because of the exclusion, on objec-39 So. 277. The explanatory charge given at tion of defendant, of the remark, "You will never find an employee working for any corporation that ever told anything unfavorable against his employer." This argument was properly excluded. Davis v. Quattlebaum, 210 Ala. 242, 97 So. 701. It was a statement or appeal to passion or prejudice different from that contained in the argument of plaintiff's counsel, appealing to a too common human trait-not to admit one's negligence or mistake. It was an unfortunate way of saying that human beings were not infallible, not exempt from liability to mistake.

The judgment of the circuit court is affirmed.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.

On Rehearing.

The case has again been carefully considThe exceptions taken to portions of the ered on rehearing. While usage at the mooral charge, when the charge is considered ment of the accident is a material and deas a whole, aré unavailing. The inferences terminative question of fact in declaring liof fact to be drawn by the jury in the con- ability vel non, still general usage before sideration of the whole evidence prevented the time of the injury is admissible in evi

(102 So.)

thereof, that human beings, in all reasonable, the railroad at the bridge and come up to probability, would be exposed to peril on the Epes"; that there was not at that time an track at the place and time of the accident automobile road on the Greene county side and injury. In L. & N. R. Co. v. Heidtmuel- up to the skiff landing; that, at the time of ler, 206 Ala. 29, 89 So. 191, it was held that the trial, "they are working on the roads exceptional and extraordinary use of the now, putting a ferry in down below" (there track at materially different times of day was no objection to this last statement); and from that when the injury was inflicted was the witness was then asked, "Do you know not sufficient to establish the usage or cus- whether or not automobiles traveled up there tom so as to subject to liability for wanton- before that?" (meaning the time of the acness; that is to say, evidence of occasions cident), and replied, "Yes, sir; I have seen of use that are not likely or reasonably prob- automobiles cross over there in a skiff before able to recur at the time of the accident is the time the boy was killed." Counsel for not sufficient. This is illustrated in the plaintiff then stated he was inquiring then Heidtmueller Case, supra, as the daily con- "up to the time this boy was killed and not vening or closing of school at a regular hour afterwards," and asked the witness, "would materially different from the hour of the or not the people who were tributary to Epes Heidtmueller homicide was not sufficient to * * * that traded there, brought cotton establish a custom at the time of the homi- | * cide. The court there said:

"While we treat this case upon the assumption that this child was killed by train No. 2, and while using its track as a walk or passageway, we do not wish to be understood to hold that the evidence is sufficient to reasonably establish the fact that the child was killed while using the track in the ordinary way, on which the plaintiff relies to establish such a general and customary use as to charge this defendant with wantonness on the part of its agents or servants. Southern R. R. Co. v. Stewart; supra [179 Ala. 304], and cases therein cited."

Appellant invokes consideration of special rulings and exceptions. They may be illusstrated by the assignments of error numbered 127 and 129. The question, "Well, did they ever use the railroad tracks in going to and from the river up to the time this boy was killed," and answer, "Yes, sir; I have seen a good many of them come in and walk down to the bridge end and see the river. Especially when the water is high numbers of them go down to see the river," went to the custom or use at the place at and before the time of the homicide. It is true that the latter phrase of the answer of the witness, "Especially when the water is high numbers of them go down to see the river," might have been excluded on specific motion, separating it from the first part of the answer. Such motion was not made.

*

*-were there any people of that sort that would habitually visit Epes up to the time this boy was killed?" The witness answered, "Yes, I have seen a few visit Epes." He was then asked, "Well, many or few that would trade in Epes came there and sold their cotton and other things?' and answered. "Well, I have seen hundreds: I reckon thousands of them." Thereupon the witness was asked the question adverted to at the outset, "Well, did they ever use the railroad tracks in going to and from the river up to the time this boy was killed?" and answered, "Yes, sir; I have seen a good many of them come in and walk down to the bridge end and see the river. Especially when the water is high numbers of them go down to see the river." There was no evidence that the water was high at the time of the injury. As to the last answer it is recited in the bill of exceptions: "Defendant moved to exclude this answer on the same grounds as assigned in the objection to the question, which motion the court overruled, and the defendant then and there duly excepted." The grounds of objection to the question were "that it called for illegal, irrelevant, and immaterial testimony, was not confined to the approximate time or day of the accident, and the approximate place of the accident, called for the use of the track at times other than the approximate time of day of the accident, and for the use of the track at places other than the approximate place of the accident."

No reversible error is shown. That part of the answer as follows: "I have seen a good many of them come in and walk down to the bridge end and see the river," was responsive and material to the issues as we have indicated. We have again examined the Heidtmueller and Grauer decisions, and the foregoing is not in conflict therewith.

Assignment of error referred to in brief as No. 122 is predicated on the question, "Do you know whether or not automobiles traveled up there before that," and answer, "Yes, sir; I have seen automobiles cross over there in a skiff before the time the boy was killed." This question must be interpreted or illustrated by the previous questions and answers tending to show the previous and existing usage and custom at the place and It is sufficient to say the several rulings at the time in question. The witness had been permitted to testify that he had seen negroes who lived on "this side of the river go across the river in skiffs and get up on

have been considered, and no good purpose will be conserved by discussing the same in detail.

The application for rehearing is overruled.

102 SO.-9

Count 2 charges the assault to a servant, 332(2)-Refusal of agent, or employee of defendant, to wit, general affirmative charge on issue of assault Chesney which said servant, agent, or emby agent held proper. Where language used by defendant's alleged ployee was acting within the line and scope agent at time of assault, when referrable to evi- of his duty as such on the date alleged, in This dence, could only pertain to master's business, making such assault and battery. or was susceptible of inference that agent did count avers that said servant, agent, or emnot step aside from master's business to pur-ployee of the defendant "accused the plainsue personal matter, refusal of defendant's general affirmative charge was proper. 7. Trial

(102 So.)

necessitating treatment by a physician, etc., | count avers facts from which agency foland plaintiff claims punitive as well as com-lowed as a conclusion of law. Brown v. pensatory damages. Comm. F. Ins. Co., 86 Ala. 189, 194, 5 So. 500. And the fact of such agency of Chesney was submitted to the jury. Written charge 7 is:

Appellee's brief contains the following ad- | ney did not step aside wholly from the mission or statement:

(N. S.)

master's business to pursue a matter entire "We are prepared to admit that there can ly personal. Republic Iron & Steel Co. v. be no separate recovery of a corporation for Self, 192 Ala. 403, 68 So. 328, L. R. A. 1915F, opprobrious words and epithets used by a serv- 516; Birmingham Macaroni Co. v. Tadrick, ant or agent of the corporation in committing 205 Ala. 540, 88 So. 858; Cent. Foundry an assault and battery and we are thoroughly Co v. Laird, 189 Ala. 584, 66 So. 571; Jebeles familiar with Singer Mfg. Co. v. Taylor (150 & Collias Conf. Co. v. Booze, 181 Ala. 456, Ala. 574, 43 So. 210, 9 L. R. A. [N. S.] 929, 124 62 So. 12; Gassenheimer v. Western Ry. Am. St. Rep. 90); Republic Iron & Steel Co. v. Self (192 Ala. 403, 68 So. 328, L. R. A. of Ala., 175 Ala. 319, 57 So. 718, 40 L. R. A. 1915F, 516); and Choctaw Coal & Mining Co. 998; Case v Hulsebush, 122 Ala. v. Lillich (204 Ala. 533, 86 So. 383, 11 A. L. 212, 26 So. 155. A jury question was preR. 1014), but we submit that argument made on sented. McMillan v. Aiken, 205 Ala. 35, 88 page 9 that the language used seeks a recovery So. 135. Defendant's refused charges 7 and separate and distinct from the assault based 8 were fairly and fully covered by written upon an oral defamation is not sustained by a charges given and in the oral charge of the reading of the averment in the count. The court. court did not, as contended by appellant, instruct the jury that opprobrious epithets could be made the basis of recovery. On the contrary, the court instructed the jury, record page 6, as follows: 'If you are reasonably satisfied from the evidence that the defendant's servant or agent committed this assault and battery while acting within the line and scope of his employment, and that such act was the proximate cause of his alleged injuries, then the plaintiff would be entitled to recover compensatory damages; that is, such damages as are the usual and ordinary result of the injury complained of. In estimating such damages the jury may consider any mental and physical pain and suffering, any humiliation, indignity, shame, or injury to his reputation that he may have been subjected to which directly ensued as a natural and proximate consequence of the wrong complained of."

[4, 5] The testimony giving the opprobrious words as used by the parties was admissible (1) to explain the character of the assault made, (2) as a part of the res gestæ of the difficulty itself, and (3) as the basis for an inference whether or not the assault and battery was committed in the line and scope of Chesney's authority and in the prosecution of the master's business. Refused charge 13, requested by defendant, "I charge you that you cannot award plaintiff any damages because of humiliation or disgrace resulting from A. C. Chesney calling the plaintiff a 'crook,' or a 'damn crook,' was misleading. South Brilliant Coal Co. v. Williams, 206 Ala. 637, 91 So. 589; Mitchell v. Gambill, 140 Ala. 316, 37 So. 290; Kress v. Lawrence, 158 Ala, 652, 47 So. 574; B. R., L. & P. Co. v. Norris, 2 Ala. App. 610, 56 So. 739.

[6] The general affirmative charge was requested on the alleged authority of Wells v. Henderson Land & Lbr. Co., 200 Ala. 262, 76 So. 28, L. R. A. 1918A, 115. The language used by Chesney immediately before the assault and battery was committed, "You know you are short, you damned crook," according to plaintiff's evidence, when referred to the whole evidence could only pertain to the master's business, or

[7] Assignments of error are based on improper argument of counsel appealing to a class prejudice. Davis v. Quattlebaum, 210 Ala. 242, 97 So. 701; Anderson v. State, 209 Ala. 37, 43, 95 So. 171; Watts v. Espy (Ala. Sup.) 101 So. 106; A. G. S. R. Co. v. Grauer (Ala. Sup.) 102 So. 125.

In Wolffe v. Minnis, 74 Ala. 386, the ob

jectionable argument condemned was:

"Judge Minnis, gentlemen, is a large-hearted, great-souled man, confiding and trusting. He is not one of those grasping men who keep a strict account of every cent they spend. If a poor widow should come to him, and tell him she was without bread, as quick as thought he would run his hand into his pocket, and, pulling out a ten dollar bill, would say to her, 'Here, take this, and go buy you a barrel of flour,'" -and Judge Stone there said:

"We think the language complained of in this case should not have been indulged; and it was well calculated to exert an improper incoming as it did from able, eminent counsel, fluence on the minds of the jurors. The court might, and probably should, have arrested it ex mero motu. It is one of the highest judicial functions to see the law impartially administered, and to prevent, as far as possible, all improper, extraneous influences from finding their And when opposing way into the jury box. counsel objected to the improper language employed, and called the attention of the court to it, it was not enough that offending counsel replied, 'Oh, well, I'll take it back.' Such remark cannot efface the impression. The court should have instructed the jury, in clear terms, that such remarks were not legitimate argument, and that they should not consider anything, thus said, in their deliberations. Nothing short of a prompt, emphatic disapproval of such line of argument, and that from the court it

self, can avert the probable mischief."

In Florence Cotton & Iron Co. v. Field, 104 Ala. 471, 480, 481, 16 So. 538, 540, it is said:

"One of the counsel for plaintiff, in his argument to the jury, in referring to parties composing the defendant corporation, used this language: "They came down here, a party of rich northern capitalists, wanting to speculate on