Vest v. Speakman , 153 Ala. 393 ( 1907 )

DOWDELL, J.

—In the complaint are joined counts for slander with counts for an assault and battery. This is not permissible. An action for slander is an action in case, while an action for an assault and battery is in trespass. Prior to the act of February 17, 1885 (Acts 1884-85, p.. 125), and Avhich, Avith a slight change, Avas adopted into the Code of 1886 as section 2673, and brought forAvard into the Code of 1896 as section 3293, counts in trespass and counts in case should not be joined in the same complaint under any circumstances, and when so joined rendered the complaint demurrable for misjoinder. — 1 Brick. Dig. p. 24, § 51; 2 Mayfield’s Dig. p. 43, § 19. The act of February 17,1885, provided as. follows: “That counts in trespass and counts in trespass on the case may be joined in the same action when the counts so united relate to the same injury or subject-matter.” This act, as adopted into Code 1896, § 3293, reads as follows: “Counts in trespass and in trespass on the case may be joined, when they relate to the same subject-matter.” Thus it will be seen that the change made in the original act, when first adopted into the Code of 1896, the only change from the former Code was in providing for the joinder of trover with trespass and trespass on the case. It is manifest that it was not the purpose of the statute,, as originally enacted, or as adopted into the several Codes, to authorize the joinder in the same complaint of counts in trespass and trespass on the case under all circumstances, but only when the two related to the same subject-matter. It is equally clear that the action for slander, which is.in case, and the action for an assault and battery, which is in trespass, do not relate to the same subject-matter; but the subject-matter of the two is entirely distinct. That the one grievance may have prompted and occasioned the other does not render the subject-matter of the two actions the same. The court erred in overruling the demurrer to the complaint for a misjoinder, and for this error the judgment must be reversed.

The counts of the complaint, after the amendment of the sixth count, in other respects were not subject to the demurrers on the grounds specified. It was‘not necessary, in the count for an assault and battery, to allege the use of opprobrious language at the time of the assault, and hence the- failure to state in what the opprobrious language consisted did not render the count demurrable.

The rule is too well established, to call for citation of authority, that special damages are not recoverable unless averred in the complaint. It is likewise well settled that in actions, for slander it is competent to prove a repetition of the slander, and this for the purpose of showing malice; and this may be done, whether the repeating of the alleged slander ivas before or after suit ■commenced. Another proposition well settled in law is that a party testifying as a witness -in his own behalf cannot testify as to his secret intentions in the doing or saying of a thing.

There are numerous assignments of error on the record, but the most of them are expressly abandoned by .counsel in their brief; and, since the judgment must be reversed and the cause remanded for the error pointed out, we deem it unnecessary to say more than we have said for the purposes of another trial. The complaint will have to be amended by striking out one or the other causes of action, and, when so done, upon another trial, questions other than those noticed may not arise.

Reversed and remanded.

Tyson, C. J., and Simpson and Denson, JJ., concur.