Opinion
1 Div. 771.
January 17, 1928. Rehearing Denied March 6, 1928. Further Rehearing Denied April 17, 1928.
Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.
Action for damages for assault and battery by Clara M. Pressberg against the Yellow Cab Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Certiorari denied by Supreme Court in Yellow Cab. Co. v. Pressberg, 217 Ala. 563, 117 So. 156.
Smiths, Young Johnston, of Mobile, for appellant.
The argument of counsel for plaintiff was outside of the issues, and was highly prejudicial. Hundley v. Chadick, 109 Ala. 575, 19 So. 845; Wolffe v. Minnis, 74 Ala. 386; Providence L. A. Ins. Co. v. Black, 15 Ala. App. 437, 73 So. 757; Birmingham v. Kircus. 19 Ala. App. 614, 99 So. 780; Loeb v. Webster, 213 Ala. 99, 104 So. 25; Bugg v. Mitchell, 20 Ala. App. 555, 103 So. 713; Ft. Smith L. T. Co. v. Flint, 81 Ark. 231, 99 S.W. 79; Texas P. R. Co. v. Rasmussen (Tex.Civ.App.) 181 S.W. 212; Gulf C. S. F. R. Co. v. Sullivan (Tex.Civ.App.) 178 S.W. 615. Employment of an incompetent servant is merely an act of negligence, and under no circumstances would justify the infliction of punitive damages. Rush v. McDonnell, 214 Ala. 47, 106 So. 175; First Nat. Bank v. Chandler, 144 Ala. 286, 39 So. 822, 113 Am. St. Rep. 39; Penn. Coal Co. v. Bowen, 159 Ala. 165, 49 So. 305.
Inge Bates of Mobile, for appellee.
Punitive damages are recoverable in an action for assault and battery in the Code form. Mitchell v. Gambill, 140 Ala. 316, 37 So. 290; Wilkinson v. Searcy, 76 Ala. 176; Standard Oil Co. v. Davis, 208 Ala. 565, 94 So. 754. Where there are facts of aggravation, it rests within the sound discretion of the jury to award punitive damages. Greenwood Café v. Walsh, 15 Ala. App. 519, 74 So. 82; Kress v. Lawrence, 158 Ala. 652, 47 So. 574; Abney v. Mize, 155 Ala. 391, 46 So. 230; South Brilliant Coal Co. v. Williams, 206 Ala. 637, 91 So. 589. Improper remarks of counsel are not ground for new trial unless grossly improper and highly prejudicial to the unsuccessful party. L. N. R. Co. v. Sullivan Timber Co., 126 Ala. 95, 27 So. 760; Jones v. Colvard, 215 Ala. 216, 109 So. 877.
The only insistence of error is the ruling of the court on objections made by defendant to argument of plaintiff's counsel in his remarks to the jury. The statement to which objection was made is as follows:
"Gentlemen, I repeat that a company who employs a man of that type, a man who is guilty of such conduct as is shown by the evidence in this case, should be made to pay substantial damages to the plaintiff."
The action was in three counts; the first two claiming damages for a simple assault and battery, under which plaintiff was entitled to recover actual and compensatory damages. The third count claimed damages for an aggravated assault under which plaintiff might recover exemplary or punitive damage. Greenwood Café v. Walsh, 15 Ala. App. 519, 74 So. 82; Empire Clothing Co. v. Hammons, 17 Ala. App. 60, 81 So. 838.
The issue therefore was the amount of damages to be assessed under all of the counts to be determined from the evidence.
The cases cited in appellant's brief are not in point. The argument of appellee's counsel was not an insistence that damages were recoverable as for wanton negligence in the employment of a servant. The action was against the master for having committed an assault and battery through its agent while acting within the line and scope of his agency. If the assault and battery was so committed and was aggravated, as the evidence tends to disclose, the plaintiff was entitled to substantial damage. There was no error in the court's rulings on the objections.
Let the judgment be affirmed.
Affirmed.