Ala.)

HARRIS v. HARRIS
(100 So.)

HARRIS v. HARRIS. (8 Div. 646.)

(Supreme Court of Alabama.

error

May 1, 1924.) 713(3)-Pleadings, 1. Appeal and rulings, and charges given and refused should be incorporated in record proper, not bill of exceptions.

Under Code 1907, § 5364, as amended by Gen. Acts 1915, p. 815, and Supreme Court rule 26, complaint, demurrers thereto, pleas, replication and demurrers thereto, court rulings, oral charge, written charges, given by request or refused, should be incorporated in the record proper, and not in bill of exceptions. 2. Appeal and error 655 (2)-Appellee's motion to strike matters improperly incorporated in bill of exceptions refused.

Appellee's motion to strike matters improperly inserted in the bill of exceptions, but harming appellee only by increasing cost of appeal if she failed, should be refused, since on proper application, such cost would probably be taxed to appellant.

3. Exceptions, bill of

23-Bill of exceptions held to sufficiently identify motion for new trial.

Statement in bill of exceptions, "Said motion is as follows: [the clerk will set out the motion appearing on the motion docket]"-referring to motion for new trial attached at or near above statement, identical to the motion appearing in the transcript in proper form, sufficiently identified it.

4. Assault and battery 24(1)-Complaint held to state cause of action.

"did

Complaint alleging that defendant wrongfully and unlawfully beat and cruelly treat, bruise, wound, and injure plaintiff," more than complies with Code 1907, p. 1198, form No. 18, which is sufficient under section 5382; conjunctive use of "cruelly treat" with "beat, bruise," etc., not rendering the entire count demurrable.

5. Appeal and error 194(1)-Plea not challenged, demurred to, nor joined issue, on not reviewable.

A plea which plaintiff neither challenges for sufficiency, demurs to, nor joins issue on, though replied to, is not reviewable,

and of defendant's daughter, "Turn that baby
loose. Papa said he would kill it before he
left home"-were admissible as res gestæ, be-
ing directly connected with the main transac-
tion.

8. Assault and battery 31-Answer of de-
fendant, "I knew I had not hurt her," held
admissible as within probable knowledge.

The complaint having alleged that defendant did beat, bruise, etc., and defendant having answered a cross-question whether he had hurt plaintiff, "I went on; I knew I had not hurt her," the court improperly allowed the words "I knew I had not hurt her" to be stricken and refused to allow defendant's counsel to question for the facts being within defendant's probable knowledge.

9. Trial 121 (2)-Argument that plaintiff was persecuting her husband with legal ac tions held justified.

In wife's suit against husband for assault and battery after separation, evidence showing other suits and a prosecution for same offense held to justify defendant's argument that wife was persecuting defendant with legal actions, and court's interruption, on its own motion, was prejudicial.

10. Parent and child 2(4)-After voluntary separation, equity may give custody of children to either.

Under Code 1907, § 4503, on voluntary separation, equity court may permit either spouse to have custody and control of children.

II. Husband and wife 205(2)-After voluntary separation, wife may sue husband for forceful taking of child from manual possession.

separation,

If a father, after voluntary takes a child in rudeness and anger, by force, from the actual manual possession of the mother, whether spouses are living together or apart, the mother may sue for damages from injuries proximately resulting.

Appeal from Circuit Court, Marshall County; Leon McCord, Judge.

Action for damages for assault and battery by Mollie Harris against John Luther Harris. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals Reversed

6. Assault and battery 24 (2)-Replication under Acts 1911, p. 449, § 6. held sufficient as against demurrer.

and remanded.

These grounds of demurrer were interIn wife's suit against husband, after voluntary separation for assault and battery in recapturing a child, plaintiff's replication al-posed to plaintiff's replication to defendant's leging that she was the mother, that the child plea 2: was female, less than three years old, and in plaintiff's peaceful possession, held sufficient as against demurrer.

7. Evidence 121 (14)—Remarks of child dur-
ing struggle for its possession between sepa-
rated spouses held admissible as res gestæ.

In suit by wife, after voluntary separation,
against husband for assault and battery in re-
capturing child from her, remarks of the child
during the struggle, "Hold me mamma!
He hurt my sore head; he is going off with me,'

* *

It is immaterial that plaintiff was the mother of the child.

The averment of plaintiff's peaceable possession of the child is a conclusion.

In this case the age of the child is not material.

The sex of the child is not material.

The fact that plaintiff was the mother of the child did not justify her in going to defendant's home and taking it without his knowledge or consent.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

That such fact did not justify her in re- tion of the motion therein, we must hold the sisting defendant's efforts to regain it. Street & Bradford, of Guntersville, for ap pellant.

John A. Lusk, of Guntersville, for appellee,

MILLER, J. The appellee, Mollie Harris, brings this suit against John Luther Harris, her husband, for damages for an assault and

battery committed by him on her wrongfully and unlawfully. There was judgment for the plaintiff on verdict in her favor by the jury, and this appeal is prosecuted therefrom by the defendant.

[1, 2] The complaint, demurrers to it, pleas, replication and demurrers to it, and the several rulings of the court thereon, oral charge of the court, written charges given by the court at the request of each party, and written charges refused to the appellant, appear twice in the transcript, once in the record proper and again in the bill of exceptions. The appellee files motion to strike them from the bill of exceptions. These matters should be incorporated in the record proper, and not in the bill of exceptions. Section 5364, as amended Gen. Acts 1915, p. 815; Beck v. West, 91 Ala. 312, 9 South. 199; Powell v. Henry, 96 Ala. 412, 11 South. 311; Rule 26 of Supreme Court. this rule nor the act prohibits their incorporation in the bill of exceptions. The appellee is not injured by it, except, if she fails in this appeal, this would increase the cost thereof in making the record, and probably on proper application the appellant should be taxed with this part at least of the court cost. This part of the motion to strike them from the bill of exceptions is refused.

Neither

[3] The appellee also files motion to strike from the bill of exceptions the motion for a new trial because it was not sufficiently identified and designated in the bill of exceptions as the matter to be incorporated in the blank place. The bill of exceptions

states:

"There was judgment of the court in favor of plaintiff for $250, a judgment of the court thereon, and to set aside which and to grant a new trial the following motion in writing was made by defendant, submitted to the court, was overruled by the court, and defendant duly excepted."

The bill of exceptions then states:

"Said motion is as follows: [The clerk will set out the motion appearing on the motion docket.]"

motion for new trial was sufficiently identidocument [motion] was intended to be infied, so the clerk could readily decide what serted in the blank place unaided by memory. The motion to strike it from the bill of excep

tions is refused. Fuller v. Fair, 206 Ala. 654,

91 South. 591.

[4] The complaint alleges that defendant "did wrongfully and unlawfully beat and cruelly treat, bruise, wound, and injure the plaintiff." It more than complies with form No. 18, p. 1198 of the Code of 1907, which is sufficient under the statute. Section 5382, Code 1907. The words therein "cruelly treat," alleged conjunctively with the words "beat, bruise, wound, and injure," did not render the entire count demurrable. The did not err in overruling the demurrers of defendant to it.

count states a cause of action, and the court

Form 18, p. 1198, Code 1907; Irby v. Wilde, 150 Ala. 402, 43 South.

574.

[5, 6] The defendant pleaded general issue and special plea 2, which alleged that plaintiff, without the knowledge or consent of defendant, wrongfully took from the defendant the possession of his infant child, was fleeing from defendant's home with the child, and the defendant immediately after learning of it pursued and overtook her while still in flight, and did then and there retake the child from plaintiff, and in doing so employed no more force than was reasonably necessary to regain possession of the child, and that he used such force in a reasonable

manner.

The sufficiency of this plea [No. 2] was not challenged by the plaintiff by demurrer. She did not even join issue on it, so we cannot discuss it. She replied to it, and for replication says:

"That she was the mother of the child mentioned therein, which was an infant girl child of less than three years of age, and the plaintiff was then and there in peaceable possession of said child."

Demurrers of defendant to this replication to plea 2 were overruled by the court, and as to this there was no error in overruling the grounds assigned to it.

The plaintiff is the wife of the defendant. They had one child, the girl of three years of age. They separated, the wife leaving his home. She had a daughter by a former marriage, and he had a daughter by a former marriage. The plaintiff with her daughter went to his home, got this little child of theirs, and was going away with it

There is attached to the original bill of ex-in a buggy drawn by a mule, and the father ceptions, which is before us, at or near this place therein, a copy of this motion for new trial, the ruling of the court thereon, and it is the same as the motion appearing in the transcript. From this copy of the motion in the bill of exceptions and from the descrip

(defendant). upon hearing of it, took his daughter, went in an automobile in pursuit of this child, and overtook them while traveling in the buggy on the public road, the child being held by the plaintiff (the mother). He caught hold of the child and took it from

Ala.)

HARRIS v. HARRIS

(100 So.)

the mother and carried it back to his home, | county court growing out of this transaction, and then into De Kalb county.

and that she also had a suit pending or
tried in the circuit court in equity growing
out of this matter, and that she is seeking
The attorney for de-
damages in the circuit court in this cause
growing out of it.
fendant in his argument to the jury stated:
"She persecuted him in the county court, and
it grew until she persecuted him in the chancery
court, and it grew until she persecuted him in
the circuit court in this case."

The court from the bench on its own mo-
tion-

"called to the counsel and stated: The court declines to permit the statement to the jury that any one is being persecuted in this court. own motion without objection from the other Mr. Street to the Court: The court on its side. The Court: Yes; the court of its own motion did so."

The evidence for the plaintiff tended to show when the defendant overtook her he stopped his car, and he and his daughter got out, and he grabbed the bridle of the mule, snatched at plaintiff and the child, and "grabbed hold of us, slammed us backward and forward in the buggy," and jerked plaintiff and the child from the buggy. During this time his daughter was holding plaintiff's and breast of plainThe arm daughter. tiff was bruised by him. The evidence for defendant tended to show that when he reached the buggy of plaintiff she took the child in her lap, and said "Let this baby alone;" and he took hold of the child under its arms and shoulders, and pulled her out of her mother's arms, without slamming or jerking either the child or the mother, The eviand carried it back to his home. dence of defendant also tended to show that he did not touch plaintiff or bruise her. [7] The court properly permitted the plain-ney from the evidence in the case was not tiff to prove that the child said "Hold me, mama, hold me, mama! he hurt my sore head; he is going off with me"-and, further, that the daughter of defendant said: "Turn that baby loose; papa said he would kill it These statements before he left home." were made in the presence of the parties, in their hearing, and during the struggle for the child. It was a part of the res gestæ, and competent evidence to be considered by the jury. It is directly connected with the main transaction. Young v. State, 149 Ala. 16, 43 South. 100; Raymond v. State, 154 Ala. 1, 45 South. 895.

The defendant duly excepted to this action of the court. This statement by the attor

beyond the pale of legitimate argument. It
was a legitimate inference from the evidence
In Hobbs v.
to be permitted in argument to the jury by
the attorney for the defendant.
State, 74 Ala. 41, this court held:
"Every inference counsel may think arises out
of the testimony" is a "legitimate subject of
criticism and discussion."

In Cross v. State, 68 Ala. 485, this court, discussing the subject of confining counsel to legitimate argument in a case, properly

said:

"It is the duty of the circuit courts, in jury own motion. This is due to truth and justice." trials, to interfere in all proper cases of their

But this court also declared in the Cross Case, supra:

"Every fact the testimony tends to prove, every inference counsel may think arises out of as shown by their manner, the reasonableness the testimony, the credibility of the witnesses, of their story, their intelligence, means of knowledge, and many other considerations, are legitimate subjects of criticism and discussion."

[8] The plaintiff on cross-examination of the defendant asked him the following question: "You did not stop to see whether you I He answered, "I went on; hurt her?" knew I had not hurt her." The court on motion of plaintiff then excluded this: "I knew I had not hurt her"-and the defendant duly excepted. The court would not permit defendant's attorney to ask the defendant, "Did you hurt the woman or not?" or "Did you injure Mrs. Harris in any way on that occasion?" The questions called for facts. It was shown in evidence that the plainThe witness answered he "knew he had not hurt her." These were facts probably within tiff prosecuted the defendant for this ofhis knowledge and observation. It was ca- fense in the county court; that she had a pable of being known to him. The complaint suit or testified in a suit against him in This was the alleged the defendant did beat, bruise, the equity court growing out of the transacThe plaintiff tion involved in this case. wound, and injure plaintiff. testified he jerked her out of the buggy, This was a bruised her breast and arm. material inquiry in the case. The court erred The answer of the witin these rulings. was improperly ruled out, and the court should have allowed defendant to The plaintiff could answer the questions. have fully tested his knowledge, if any, on the subject by cross-examination.

ness

[9] There was evidence that the plaintiff prosecuted the defendant criminally in the

third case against him. Blackburn v. Minter,
22 Ala. 613. The attorney by this argument
from the evidence charged that the plaintiff
(not the court) by the many suits against the
defendant was persecuting him in such court.
This argument of the attorney, excluded by
the court, was a legitimate inference from
the evidence as presented by the defense.
The court erred in this ruling; and, coming
direct and as it did from the court ex mero
motu it was calculated to prejudice the cause-

of the defendant with the jury. Authorities | 3. Appeal and error 1058(1)—Rejection of supra.

[10] In case of voluntary separation of husband and wife a court of equity has power to permit either, the father or the mother to have the custody and control of the children. Section 4503, Code 1907.

testimony subsequently admitted without objection not prejudicial.

The rejection of testimony subsequently admitted without objection is not prejudicial. 4. New trial 162(5)-Reduction of verdict on denial of motion approved.

On motion for new trial, the court's action in reducing the amount of the verdict, plaintiff's consent, and judgment accordingly, is approved.

[11] It would be wrong for either parent in rudeness or in anger to take by force their child from the actual manual possession of the other, whether they are living together or apart; and if the father did so, then an action for damages therefor may be maintainAppeal from Circuit Court, Chambers ed by the mother, if she is injured as a proxi-County; S. L. Brewer, Judge. mate consequence thereof. Hayes v. Hayes, 15 Ala. App. 621, 74 South. 737; Johnson v. Johnson, 201 Ala. 41, 77 South. 335, 6 A. L. R. 1031; Wilson v. Orr, 210 Ala. 93, 97 South. 133, headnote 11-12.

Written charges numbered 1, 2, 3, 4, 5, 6, and 7, requested by the defendant, are not in harmony with the principles of law above declared, as applicable to this cause, and the court properly refused each one of them, and a separate discussion of each is not necessary.

There are many other errors assigned on parts of the oral charge of the court and the argument of attorney for the defendant to the jury. We need not discuss and pass on these alleged errors. The judgment must be reversed. The complaint may be amended, an entirely different issue may be presented on another trial, the argument of attorneys will no doubt be different, and what we have written is sufficient to guide the

court.

The judgment is reversed, and the cause remanded.

Reversed and remanded.

Action for conversion by the Eady-Baker Grocery Company against A. Z. Cumbee. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Affirmed. Jas. A. Hines, of Lafayette, for appellant. Morrow & Moore, of West Point, Ga., and Denson & Denson, of Opelika, for appellee.

GARDNER, J. Action in trover by appellee against appellant for the conversion of a number of bales of cotton embraced in a mortgage executed to plaintiff by a Mrs. Clayton Cone on January 21, 1921, and duly recorded January 22, 1921.

[1] Defendant sought to justify his conversion of the cotton by reason of a prior crop mortgage executed by Mrs. Cone to himself on January 15, 1921, but which was not recorded until subsequent to the recordation of plaintiff's mortgage, to wit, January 27, 1921. Defendant insisted, however, that at the time of the execution of plaintiff's mortgage actual notice was given of the defendant's said mortgage; but as to this the evi

ANDERSON, C. J., and SAYRE and dence was in conflict and left for the jury's determination. GARDNER, JJ., concur.

[2] One Sid Fuller was secretary of the plaintiff company, kept the books, and stated he had "personal knowledge" of Mrs. Cone's account, and that her note had not been paid. The court committed no error in per

CUMBEE v. EADY-BAKER GROCERY CO. mitting the witness to further testify that

(5 Div. 887.) (Supreme Court of Alabama. May 22, 1924.) I. Trial 143-Issue on which evidence con

flicting for jury. An issue on which the evidence is in conflict is for the jury.

2. Evidence 471 (34)-Permitting bookkeeper, stating that he has personal knowledge, to testify that full amount of note representing account still due not erroneous.

Where plaintiff's bookkeeper, in an action in trover for conversion of mortgaged cotton,

stated that he had personal knowledge of the account and that the note representing it was not paid, it was not erroneous to permit the witness to further testify that the full amount of the note was still due.

the full amount of the paper was still due. Richards v. Herald Shoe Co., 145 Ala. 657, 39 South. 615. Moreover, the witnesses testified without objection as to the items of the account due by Mrs. Cone, and the amount of the indebtedness was not a controverted issue in the cause.

[3] The action of the court in sustaining plaintiff's objection to the question addressed to Mrs. Cone, which constitutes the third assignment of error, could well be justified upon the ground the question was a leading one. In no event, however, did defendant suffer any injury, as the witness subsequently stated fully as to what she said to Kirby, and her husband testified likewise-all without objection.

(100 So.)

ANDERSON, C. J., and SAYRE and MIL- joined with other counts based on actions LER, JJ., concur.

Complaint with counts for corn and timber sold and delivered, joined with counts for cutting and removing timber, in which plaintiff did not aver sale of timber by defendant after Plaintiff in count 4 claims $500 for the its removal and sue in assumpsit for money "value of timber cut and removed by dereceived by defendant, held demurrable for misjoinder of actions ex contractu and ex defendant or his laborers or employés upon licto, not arising out of same transaction with- following lands [describing them], together in Code 1907, § 5329.

with accrued interest thereon." This count fails to allege that plaintiff owned the land or timber or both when the timber was cut and removed from it, but that defect is not presented by demurrer.

[1] Plaintiff in count 5 claims $500 damages for cutting and removing timber from

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 100 SO.-22