Ritter v. Griswold

PELHAM, J.

The appellee brought suit in the court below against appellant on a claim for damages growing out of an assault and battery, alleged to have been committed on the plaintiff by the defendant, and the trial was had before the court without a jury, and resulted in a judgment in favor of the plaintiff. • The complaint, filed December 1,1908, was in the Code form; the defendant’s name being stated as Claude B. Ritter. On December 23, 1908, and within the 30 days allowed for pleading under the act regulating pleading in the city court of Birmingham (act approved February 28, 1889 [Acts 1888-89, p. 995, § 5]), the defendant filed a plea of misnomer, setting up that his true name was not Claude B., but Claude D., Ritter. No demand for a jury was indorsed on this plea, and the record shows no ruling on the plea; but more than a year afterwards, on, to wit, the 19th day of May, 1910, the plaintiff filed an amendment to his complaint, stating the name of the defendant to be Claude D. Ritter, as averred by defendant to be his true name in the plea of misnomer previously filed. The only minute entry shown by the' record allowing an amendment to the complaint is as follows: “On this, the 15th day of February, 1910, this cause being reached on the docket and called for trial, came the parties by their attorneys, and the plaintiff, *621 by leave of the court first had and obtained, amends his complaint herein as appears by a separate paper writing this day filed” — and refers to an amendment filed February 15,1910. No amendment of that date appears in the record, but the record does show a plea of the general issue, filed by the defendant on February 15, 1910, upon which no indorsement appears to have been made, demanding a trial by jury. The first demand made by defendant for a jury trial, so far as is shown by the record, was indorsed on the general and special pleas filed by him May 19, 1910, after previously having filed a plea of the general issue on February 15, 1910.

The minute entry of May 19,-1910, recites: “It appearing to the court that in this case a jury has been waived as by the statute in such cases made and .provided, the court proceeds to hear and determine this cause.” No objection is shown to have been made by the defendant to the court’s order or proceeding to try the case without a jury, nor was there any other insistence shown to have been made for a trial by jury, other than that made to appear by the indorsement on the pleas filed May 19, 1910.

The right to a trial by jury in such a case is a personal privilege, and, the statute providing the means by which defendant may avail himself of this privilege not having been complied Avith, he was not entitled to have the case tried by a jury. Act approved February 28, 1889, § 9; Knight et al. v. Farrell & Reynolds, 113 Ala. 259, 20 South. 974; Ex parte Ansley, 107 Ala. 613, 18 South. 242.

The statement by the Avitness Ward, to the effect that immediately upon regaining consciousness after being stricken GrisAvold asked AA'hat liad happened, the court correctly admitted as part of the res gestse.—Nelson v. State, 130 Ala. 45, 30 South. 422.

*622 That the plaintiff had at some time previous to the difficulty in question inade- a derogatory remark about the defendant is not competent evidence, or admissible under the defendant’s plea setting up prior threats. It was too indefinite and remote-as to time, and in no way tended to prove or disprove the issues before the court. Such remarks, made on a prior occasion in the absence of the defendant, would not justify or mitigate the assault, and the objections to these questions asked the-plaintiff on cross-examination were properly sustained.

The plaintiff elicited from the defendant on his cross-examination, against the objection of defendant, that he had put in a plea of guilty, and had paid a fine, in a criminal prosecution growing out of the same assault upon which a recovery in this case is predicated. The Supreme Court has passed on the admissibility of testimony on that subject in a case of this kind, and held that it is not competent.—Irby v. Wilde, 155 Ala. 388, 46 South. 454; Phillips v. Kelly, 29 Ala. 628.

It is not' necessary to discuss other assignments of error, as they rest upon matters that can be avoided upon another trial, and for the error pointed out the case must be reversed.

Reversed -and remanded.