## Facts

- Joan Whitaker dated Dr. M. C. Holcombe, Jr., who told her he was divorced.
- Holcombe asked Whitaker to pose as his wife at a medical convention and then participated in a ceremonial marriage with her in Las Vegas.
- After returning to Alabama, Holcombe told Whitaker he was still married to his first wife and refused to annul the Las Vegas marriage or obtain a divorce and remarry Whitaker.
- As the relationship deteriorated, Whitaker testified that Holcombe threatened to kill her if she pursued legal action and that she received harassing phone calls from him.
- After Whitaker filed suit, Holcombe came to her apartment, banged on the door, tried to open it, and again threatened to kill her if she continued the case.
- Whitaker alleged that the threats and conduct placed her in fear and constituted a civil assault and other torts.

## Issues

1. Whether Holcombe’s threats, combined with his contemporaneous conduct, were sufficient to create a reasonable apprehension of imminent harmful or offensive contact and thus support a civil assault claim.
2. Whether the jury’s damages award was excessive and whether the trial court properly conditioned denial of a new trial on Whitaker’s acceptance of a remittitur.

## Decision

- The Supreme Court of Alabama held the evidence supported submission of the assault claim to the jury and denied Holcombe’s request for JNOV.
- The court affirmed the judgment as reduced after the trial court ordered a remittitur from \$35,000 to \$20,000 as a condition for denying a new trial.
- Whitaker’s cross-appeal challenging the remittitur was rejected.

## Legal Principles

- A civil assault may be established when a defendant, by word or act, creates in the plaintiff a reasonable apprehension of an imminent battery.
- Words alone ordinarily do not constitute an assault, but threats accompanied by an overt act indicating an immediate intention to carry them out may be actionable.
- Appellate review of remittitur and allegedly excessive verdicts is deferential; a trial court may condition denial of a new trial on remittitur where the reduced award is supported by the evidence and does not reflect passion or prejudice.
- Damages for assault may include compensation for fear and mental anguish where supported by the circumstances and proof.

## Conclusion

The court affirmed liability for civil assault because Holcombe’s death threats, coupled with conduct at Whitaker’s apartment suggesting immediate execution of the threats, could reasonably place her in apprehension of imminent harm, and it upheld the trial court’s remittitur, leaving a \$20,000 judgment in Whitaker’s favor.


Holcombe v. Whitaker, 294 Ala. 430, 318 So. 2d 289 (Ala. 1975)