Dannenberg v. Berkner , 118 Ga. 885 ( 1903 )

Lamar, J.

1, 2. It is unnecessary to consider whether under Malone v. State, 49 Ga. 218, and Wall v. State, 69 Ga. 766, the conduct of the plaintiff was such as to demand a charge on the subject of reasonable fears; because the court gave the defendants the full benefit of that principle, and repeatedly charged that they might consider whether, in making the battery, the defendants were acting under the fears of reasonable men. Nor was it error requiring the grant of a new trial to instruct the jury that they might consider the character of the plaintiff for turbulence, so far as known to the defendants, in etermining whether they acted under such fears or maliciously. In Williams v. Fambro, 30 Ga. 232, there were no eye-witnesses to the homicide, and it was held that evidence as to the slave’s character for insubordination might be considered, whether known to the defendant or not, for the purpose of mitigating.the damages sustained, and showing the probability of the defense that the slave was killed in an act of insubordination. Here the character of the plaintiff and all of the facts attending the battery were before the jury. He made no actual assault, but the defendants insisted that they thought he was going to make an attack, and gave as a reason for such belief that they knew and had heard of his turbulence when drinking. The plaintiff himself having made no assault, his character was immaterial except in so far as their knowledge of his reputation for violence justified the fears of the defendants. As the danger was not in fact real, they could show that to them it was apparently so. If they did not know' of his quarrelsome disposition, it could not explain their conduct; if they did know thereof, it might have illustrated the motive with which they acted. The charge is sustained by the authorities. In Culley v. Walkeen, 80 Mich. 443, it was held that “ where, in a civil suit for assault and battery, justification by way of self-defense is pleaded, it is competent to show the character of the opposite party as being quarrelsome, when such fact has been brought to the knowledge of the defendant prior to the assault.” Kuney v. Dutcher, 56 Mich. 308 (4); Shook v. Peters, 59 Tex. 393 (5); Knight v. Smith, 57 Vt. 529. Compare Doyal v. State, 70 Ga. 134 (5a). One battery occurred immediately after the other, and the damages arising from both were sued for in the same petition. The judge was not bound in his charge to separate the two transactions, there being no special request therefor, and the charge as a whole applying to both batteries. Nor was he bound to charge the principle laid down in Peavy v. Ga. R. Co., 81 Ga. 485, the same not having been requested in writing.

3. In the petition it was alleged that after the battery one of the defendants stood up in the car and gave in a loud voice, as an excuse for their treatment, that plaintiff “ denied to me owing a debt which he has owed for the past nine years.” There was no special demurrer. The evidence as to the words used, and their meaning, was conflicting, but it was not improper, under the circumstances, to allow the same to be considered by the jury as an aggravation, even if the language may not have been actionable in a suit for slander. Civil Code, §3906; Bell v. Morrison, 27 Miss. 68, 84, 85.

4. It was no error to charge that if the jury believed that either of the defendants with a pointed instrument, such as the metal rod of an umbrella, “stabbed or jabbed” the plaintiff, opprobrious words would afford no justification therefor. Even if the steel rod of an umbrella is not an instrument with which the the offeuse of “ stabbing ” might be committed, tbe petition so described this part of the assault, and there was no special demurrer. It was not for the name, but the act and the injuries, that the' damages were to be awarded by the jury under the charge, and no harm wa$ done the defendants in calling it by the term set out in the pleading aud used by the witnesses. The defendants had already testified that they were in'fear of the plaintiff; and even if the exclusion of the evidence of Block on that subject, in answer to the leading question, was error, it was harmless. But as to the particular assignment in the tenth ground of the motion, it is sufficient to say that the record does not show that the attention of the court was called at the time to what the witness’s answer would have been. See Griffin v. Henderson, 117 Ga. 382, aud cases there cited. The other assignments are in principle controlled by the ruling in Berhner v. Dannenberg, 116 Ga. 954. The damages do not appear to have been excessive; and the judgment is Affirmed.

All the Justices concur.