Gaither v. Blowers , 11 Md. 536 ( 1857 )

The following opinions were delivered in the case.

Le Grand, G. J.-

This is an action of assault and battery, brought by the appellee against the appellant. The pleas were “not guilty and “son assault demesne;” the replication to the second plea was “de injuria et cetera.”

The plaintiff gave evidence of the battery complained of, which was, the shooting of hitn by the defendant, in the shoulder and neck, and partially disabling him in the use of the left arm for life, and otherwise injuring him. Whereupon the defendant offered to prove by a Mr. Shields, that in June 1855, the plaintiff told him he had taken a notice to the defendant’s house, warning him not to come to his house again, and had told his son to tell his father, that if he ever come again on his premises, he would put him where all his negro money could not bail him. And further offered to prove by the same witness, that at the same time the plaintiff declared he would as soon kill the defendant as a rattlesnake, and he was a grand rascal, and he, the plaintiff, had told his negro woman, if she would shoot the defendant that he would hold her harmless, but the witness stated, that he had not communicated this conversation to the defendant before the plaintiff was shot. On the defendant’s counsel being questioned by the court, whether they meant to follow up the offered evidence with proof, to show that the conversation of the plaintiff, as detailed by Shields, had been communicated by him to the defendant before the shooting of the plaintiff, the counsel replied, they had no such proof, whereupon the court refused the offered testimony, and this refusal constitutes the appellants first exception. Under this state of circumstances, the court below was clearly right in rejecting the evidence. Possibly it might have been evidence in the cause, in mitigation of damages, had it been shown by other testimony, that this language had been communicated to the defendant. In no event could it have been used to prove a defence. The declarations were mode in June 1855, and the battery complained of was in August of the same year. To make out a case in mitigation of < damages, the provocation should be shown to have been immediate. Avery vs. Ray, 1 Mass., 12. In Lee vs. Woolsey, 19 Johnson, 319, it was held, that in an action of assault and battery, the defendant cannot give in evidence, in mitigation of damages, acts or declarations of the plaintiff at a different time, or any antecedent facts which are not fairly to be considered as a part of one and the same transaction, though they may have been ever so irritating and provoking: That the provocation, to entitle it to be given in evidence, in mitigation of damages, must be so recent and immediate, as to induce a presumption, that the violence done, was committed under immediate influence of the feelings and passions excited by it. When, therefore, we say, that had the proposed evidence been followed up by proof that it had been communicated to the defendant, that possibly it might have been considered in mitigation of damages, we mean to be understood as merely asserting, that if the communication had been made at a time so near to that of the battery, as to have allowed the inference, that the conduct of the defendant was influenced by the irritation of feeling produced by it, then it would be proper for the jury to consider it in the assessment of damages. The law mercifully pays this tribute to the weakness and infirmities of human nature, which subject it to uncontrolable influences when under great and maddening excitement superinduced by insult and threats. But it wholly discountenances that cruel disposition, which for a long time broods over hastily and unguardedly spoken words, and seeks, when opportunity offers, to make them an excuse for brutal behavior. With such a temper it has no sympathy. It charitably deals with sudden gusts of feeling, but rigorously with the malignant and cruel. This is its ethics.

The second exception of the appellant, grows out of the court’s allowing the plaintiff to give evidence, with a view of increasing his damages, that he was a laboring man, and had a wife and children to support.

The general rule is, that it is not necessary to state specially any matters which are the legal and natural consequences of the battery, nor are the jury confined to the mere corporal injury which the plaintiff has sustained; but they are at liberty» to consider the malice of the defendant, the insulting character of his conduct, the rank in life of the several parties, and all the circumstances of the outrage, and thereupon to award such exemplary damages as the circumstances may, in their judgment require. 2 Greenlf. on Ev., sec. 89. In McNamara vs. King, 2 Gilman, 436, the court say, that “in actions of this kind, the condition in life, and circumstances- of the parties, are peculiarly the proper subjects for the consideration of the jury, in estimating the damages; their pecuniary circumstances may be inquired into. It may readily be supposed that tlie consequences of a severe personal injury would be more disastrous to a person destitute of pecuniary resources, and dependent wholly on his manual exertions for the support of himself and family, than to an individual differently situated in life. The effect of the injury might be to deprive him and his family of the comforts and necessaries of life. It is proper that the jury should be influenced by the pecuniary resources of the defendant. The more affluent, the more able he is to remunerate the party he has wantonly injured. Ic this class of cases, the jury may give exemplary damages, not only to compensate the plaintiff, but to punish the defendant. The standard of damages is not a fixed one, applicable to all cases, but is to be regulated by the circumstances of each particular case.” This is good sense, and is sustained by the decisions in most of the States. An injury done to a person not dependent on manual labor for the support of himself and family, is in nowise as great as one to a person so situated. We are of opinion the court properly overruled the objection.

After testimony given by a witness named Howard, for the purpose of discrediting the witness, Burgess, and also proving certain conversations, the defendant offered to prove, by the witness, Howard, ‘ ‘that, shortly before the shooting and wounding of the plaintiff, he, the plaintiff, told the witness that he did not consider the defendant always in his right mind;” but the court refused to allow said last offered evidence to be given for any purpose in the cause, and this refusal is appellant’s third exception. It does not appear this judgment of the defendant, by the plaintiff, was ever made known to him, nor does it appear there was any mental imbecility, or liability to mental aberration, of the defendant, nor was any proof proposed to be given to show that, at the time of the perpetration of the -wrong, the defendant was not in the full possession of his mind, save as may be gathered from the facts in the cause, he was governed by wricked and bad feelings toward the plaintiff Without intimating that if either or all these eircumstances had been proven, or had been offered to be proven, that then the conversation had with the witness, Howard, would be admissible, yet, in their absence, we are wholly unable to perceive on what theory it was expected it should be allowed to be given in evidence. This is a civil action for damages alleged to have been sustained by the plaintiff, because of the tortious act of the defendant, and not a criminal proceeding, where an inability to distinguish between right and wrong, would avail to the advantage of the defendant. The idle declaration of the plaintiff, of his opinion, that the defendant was not always in his right mind, could not, in any event, be evidence, except as showing provocation, because of its irritating character. Rut it does not appear this language was ever communicated to the defendant, and, for the reasons which we have given in regard to the first exception, was rightfully rejected.

. On the whole testimony, the defendant submitted to the court four prayers, (numbered, in the record, 1, 3,4, 5,-) all of which, in our judgment, were properly rejected. Bach, apart from other considerations, contained the same vicious principle; that is to say, they denied the right of the plaintiff to recover on the second issue for the excessive assault and wounding, he not having replied specially to the plea of son assault demesne.

The view of the counsel for the defendant, as taken in these prayers, on examination, will be found to rest principally on the case of King & Wife vs. Phippard, in Carthew, 280, and in Skinner, 387. Most, if not all, of the elementary writers, refer to this case for the support of the doctrine contended for by the defendant. That case seems to have been this: the plaintiff declared for an assault and battery committed on his wife, to which the defendant pleaded son assault demesne. The plaintiff replied, not generally, but by confessing the assault, and avoiding it; that is, it was confessed she made the -first assault, by gently forcing from her house the defendant, who had entered it and there misbehaved; the defendant’s misbehavior was the justification. To this replication the defendant demurred, but the court held it to be good, observing that the plaintiff could not have given this new matter in evidence under the general replication de injuria, <fcc. This seems reasonable and proper, and conformable to the rules of pleading. Until this special replication, the plaintiff had not, on the record, admitted his wife had made any assault, and if he wished to admit and justify it, it was incumbent on him to do so in his pleadings before the introduction of testimony in relation to it. The plea of son assault demesne, in substance, asserts that the plaintiff made the first assault, and that in resisting it, the defendant used no excessive violence. The plea admits the assault charged against the defendant, but justifies it by the previous assault of the plaintiff, and the use of only such violence as was necessary to repel it. A denial of this, imposes on the defendant the proof of the first assault, and the employment, on his part., of no more than the proper force to resist it. It is difficult to perceive how the whole question could be presented more distinctly than by a flat denial of the allegations of the plea. To compel a plaintiff, who had made no assault on the defendant, to confess that he had done so, and then to justify what never did occur, seems to be repugnant to all our ideas of right reasoning. Widely different is the case where such an assault has been made by the plaintiff. In such a case, if the plaintiff wishes to justify such an assault by evidence to be given at the trial, then he should specially aver it, and the circumstances constituting its justification. We understand the case of Dale vs. Wood, 17 Eng. C. L. Rep., 69, as asserting the same doctrine as the case of King vs. Phippard, in Carthew, 280. The Court of Common Pleas do nothing more than declare, that where a plaintiff can justify his assault on the defendant, he must plead specially, and that he will not be permitted to justify by evidence at the trial, under the general replication de injuria. In the case of Dale vs. Wood, there was proof that the plaintiff assaulted the defendant, by dismounting from his horse, and holding up bis stick at the defendant, when the latter struck him. What the court disallowed was a justification by the plaintiff, at the trial, under the general replication. And so here, had it been proven that the plaintiff had first assaulted the defendant, under the authority of the cases referred to, he would not have been permitted to justify it by evidence at the trial. But such is not the case; there is a total want of proof of any assault having been made bjr the plaintiff, and the defendant failing to prove it, his defence was confined to' his own act, that complained of.

These views will be found to be fully sustained by a very able opinion of the Supreme Court of Vermont, in the case of Elliot vs. Kilburn, 2 Vermont, 470, in which there is a clear review of most of the authorities. An examination of that case will fully establish the rationality of the view we have taken of the prayers in this case, supported, as it is, by the principles of pleading, and the judgments of those most reputed for proficiency therein. And, we may add, that the doctrine is also fully sustained by Crogate’s case, 8 Coke, 66, where it was resolved as follows: “The general plea, de injuria sua propria, &c., is, properly, when the defendant’s plea doth consist merely upon matter of excuse, and of no matter of interest whatsoever; et dicitur de injuria sua propria, &c., because the injury properly, in this sense, is to the person, or to the reputation, as battery or imprisonment to the person, or scandal to the reputation; there, if the defendant excuse himself upon his own assault, or upon hue and cry levied, there properly de injuria sua propria generally is a good plea, for there the defendant’s plea consists only upon matter of excuse.” In this case, the defendant’s plea “consists only upon matters of excuse,” and, therefore, the general replication is good.

Eccleston and Bartql, J.

We agree with the Chief Justice in the propriety of affirming all the decisions of the .court below, which have been excepted to; and we concur in the views which he has expressed in regard to the first, second and third bills of exceptions. In reference, however, to- the fourth exception, we think the prayers of the defendant were properly rejected, even conceding there is proof tending to show that the plaintiff committed' the first assault; and we prefer placing our judgment on that ground.

Our opinion is, that when, to a plea of son assault demesne, •a plaintiff puts, in a general replication of de injuria sua propria, &c., although the defendant gives evidence of a first assault by the plaintiff, the latter may give proof of, and recover for, an excessive battery, beyond what was justified by the first assault; and, in order to enable him to recover, upon proof of such excessive battery, it is not necessary that he should new assign, or reply specifically.

We are aware that upon this subject the authorities are conflicting, but we think it will appear, from an examination of the reported cases, and the elementary writers referred to in the argument, that the weight of authority sustains the view we have taken.

Judgment affirmed.