Le Laurin v. Murray , 75 Ark. 232 ( 1905 )

Riddick, J.,

(after stating the facts.) This is an appeal by the plaintiff from a judgment rendered in an action brought by him against the defendants to recover damages for an assault and battery committed on him.

There was evidence tending to show that the assault and battery committed by Peterson on Ee Eaurin at the time he and Murray were fighting was done without the knowledge or consent of Murray. We think this • evidence was competent, and the weight to be attached to it was a matter-for the jury. The court, in our opinion, was correct in telling the jury that Murray was not liable for acts of Peterson done without his knowledge or consent. The fact that Peterson was present with Murray, and that he did join in the assault on Le Laurin, tends very strongly to show that Murray was aided in this assault by Peterson, and that he and Peterson were acting in concert; but, as we have shown, there was evidence to the contrary sufficient to go to the jury.

But the indecent epithets which were used by Le Eaurin concerning Murray were not used by Le Eaurin on the day of the assault nor shortly before. It had bedn some weeks, or even. months, since they had been repeated by him. Murray had heard of such remarks before, and when they were repeated to him that morning by Peterson it was not the first time he had heard of them, though he had not heard before that Le Laurin claimed to have repeated such words in his presence. But Le Laurin, while he admitted having used the epithets in speaking of Murray, positively denied that he had ever stated to Peterson or to any one else that he had applied them to Murray ■in his own presence. And it is not unreasonable to believe that Peterson added this statement in order to arouse the passions of Murray, and- cause him to attack Le Laurin; for the evidence shows clearly that Peterson was much more to blame than Murray for this assault on Le Laurin. Up to the time of this conversation with Peterson, Murray had kept his passions under control, and had demeaned himself about this matter in every respect as a good citizen should do, even though greatly provoked. He allowed to pass unnoticed epithets spoken about him by Le Laurin behind his back. To this language, which was of such a loathsome and revolting nature as reflected much more on the one who used it than on him of whom it was spoken, Murray made no reply, but, as it was not spoken in his presence, he treated it with the contempt of silence which it deserved. But Peterson evidently desired to bring about a meeting between the two, and so when he met Murray he repeated to him this language which Le Laurin had spoken about Murray some weeks before, and of which Murray had heard; and, in order to force Murray to resent it, he adds to it some other remarks which he said were used by Le Laurin, to the effect that he had applied these epithets to. Murray in his own presence, and that Murray had not resented them.

But, even if we admit that Le Laurin did make the additional remarks which Peterson reported to Murray, they had been made several weeks before. Le Laurin was not present when the language was reported to Murray by Peterson. After this Murray and Peterson went from the saloon where the information was given to the shop where Le Laurin worked, and waited some minutes for him to arrive. The assault on Le Laurin was made nearly, if not quite, an hour after Peterson had the talk with Murray.

Now, it is a well settled rule of law that mere words never justify an assault, though, when they ar.e such as to naturally arouse the resentment of those to whom.they are addressed, they may go in mitigation of damages resulting from an assault provolced by them; but to do this they must have been uttered at the time of the assault, or so recently before that the provocation and the assault' may be considered as parts of the same transaction. If sufficient time has intervened for reflection, and for reason to regain control, words, however provocative, do not in law mitigate such damages, for only provocation that is so recent as not to allow cooling time is competent to mitigate damages; and even then such mitigation extends only to exemplary damages. Damages for pecuniary losses actually sustained from a wrongful assault can never be mitigated below adequate compensation. Ward v. Blackwood, 41 Ark. 295; Godsmith v. Joy, 61 Vermont, 488; Prentiss v. Shaw, 56 Me. 427; Millard v. Truax, 84 Mich. 517; Hale on Torts, 262.

Provocation, so recent and immediate- as to induce a presumption that the violence .done was committed under the immediaté and continuing influence of the feelings and passions excited thereby, may be shown in mitigation of damages. Mowry v. Smith, 91 Mass. (9 Allen), 67; Millard v. Truax, 84 Mich. 517; 3 Cyc. 1096.

But, .as we have before stated, this provocation occurred some weeks or months before the assault, and the mere fact that the language used by Le Laurin was repeated by Peterson to Murray an hour or so before the assault does not bring it within the rule, for there was but little of it that Murray had not heard before. Had Le Laurin repeated his former statements about Murray on the day of the assault, this renewal of an old slander would have been a double provocation; but he is not responsible for the fresh repetition by Peterson. 3 Cyc. 1098.

While we are of the opinion that the court erred in telling the jury, as he did in the last paragraph of the fourth instruction given by him, that these remarks made by Le Laurin weeks before the assault might, under certain circumstances be considered by 'them in the mitigation of damages, yet we think that, under.the peculiar facts of this case, it was proper to allow the . defendants to show that epithets and offensive words had been used by Le Laurin in speaking of Murray and the nature of such language, in order that the jury might understand the meaning of the words u'sed by these parties at the time of and immediately before the assault. This was necessary in order for the jury to decide correctly whether Le Laurin intended to make a repetition of the charge against Murray at the time of the assault. If he did this, and thereby provoked the assault, the language would go in mitigation of the damages] except such as were strictly compensatory. But, though it was proper for this purpose to give in evidence the nature of the offensive.language spoken by Le Laurin about Murray, the court should have cautioned the jury that such evidence was admitted only as explanatory of the language used at the time of the assault, and that, having been spoken days and weeks beforehand, 'it could not be considered, even in mitigation of damages, unless there was a repetition at the time of the assault. He should also have told them that provocation, even if given at the time of the assault, could not under any circumstances reduce the verdict below the damages actually suffered by plaintiff at the hands of the defendant.

It does not appear that Le Laurin suffered to any great extent 'from any blow given by Murray in person; and, as the jury evidently found that he did not authorize or consent to the assault by Peterson, if there had been no error in the instructions, we should affirm the judgment, notwithstanding the damages assessed are extremely small.

But we are of the opinion that the charge of the court, while clearly stated and admirable in many respects, and although, abstractly considered, it states the law correctly, yet, under the facts of the case, it is to some extent misleading on the points to which we have called attention. The judgment will therefore be reversed, and the cause remanded for a new trial as to Murray.