Sims v. Sowle ( 1964 )

O’CONNELL, J.,

specially concurring.

The principal opinion expresses the view that a party to an action for assault and battery may not prove his reputation for peace and quietude before that reputation is called in question by the other party. I cannot accept this view. Where there is an issue as to who committed the first act of aggression, evidence of the good or bad reputation of both parties is relevant. The effect of the majority opinion is to recognize that the plaintiff may show that the defendant has a reputation for being quarrelsome but plaintiff may not, prior to an attack upon his character, show that he himself has a reputation for being peaceable. The latter evidence is no less relevant than the former on the issue of who was the first aggressor. I do not mean to suggest that a party may always attempt to prove his good reputation in the trial of a eause. The issue may be such that plaintiff’s reputation is not relevant. However, plaintiff’s reputation is relevant to the issue of first aggression and evidence of that reputation should be admitted. Brown v. Simpson, 293 Ky 755, 170 SW2d 345 (1943) (reaffirmed in Brown v. Crawford, 296 Ky 249, 177 SW2d 1 (1944)); J. C. Penney Co. v. Gravelle, 62 Nev 434, 155 P2d 477 (1945); Breckenridge v. Drummond, 55 Old 351, 155 P 555 (1916); 1 Jones, Evidence § 173, p. 305 (1958); McCormick, Evidence §159, p. 339 (1954). Phillips v. Mooney, 126 A2d 305 (D. C. Mnn. App. 1956) (dictum).

Denecke, J., joins in this opinion.