Smith v. Davis , 76 Ga. App. 154 ( 1947 )

1. Conduct not amounting to a justification for an assault and battery may be pleaded and proved by the defendant in extenuation or mitigation of damages; and, where the injured party claims punitive damages, all the surrounding circumstances accompanying the breach of duty may be given to the jury; and an amendment alleging a number of acts closely connected and related to the assault should have been allowed in mitigation of damages.

2. The exclusion of certain questions propounded to the plaintiff upon cross-examination by defendant's counsel tended to abridge or deny the right of cross-examination and was erroneous.

3. The exclusion of certain questions and the anticipated answers propounded to the defendant was not harmful error where substantially the same evidence was admitted without objection.

4. The general grounds of the motion for new trial are not considered.

DECIDED NOVEMBER 1, 1947. REHEARING DENIED NOVEMBER 26, 1947. Thomas Davis sued C. E. Smith for damages in the Superior Court of Fulton County. The plaintiff alleged that on the 10th day of August, 1946, the defendant committed an unjustifiable, unprovoked, malicious and aggravating assault and battery upon the person of the plaintiff, and that as a result of said assault and battery he was injured and damaged in certain particulars set forth, and he prayed for actual and punitive damages. The defendant's answer denied every allegation of the petition except that as to the jurisdiction of the court. Upon the trial the defendant offered an amendment alleging that the plaintiff was a tenant of the defendant during 1946, and as such tenant had by a prolonged series of acts and conduct committed against the defendant, created in the mind of the defendant a constant fear that the plaintiff intended to do him bodily harm, causing the defendant to live in fear of an attack upon him by the plaintiff. The amendment set out the acts and conduct of the plaintiff referred to as refusing to cultivate certain lands; refusing to keep his original agreement with the defendant; by quarreling and disagreeing with the defendant about the use of stock on the farm; by persuading the defendant at great expense to buy wire fencing for a hog-lot for the private use of the plaintiff, and then refusing to use it in constructing new fences so that the hogs of the plaintiff and of the defendant could be kept separate and apart; by claiming he did not have enough land to cultivate and then not cultivating what he had; by refusing to furnish help on the farm as promised; by refusing to keep the fences in repair; by keeping up complaints and contentions about frivolous matters; and "by boasting repeatedly in the presence of this defendant that he had cut a man to pieces in Atlanta, Georgia, and by continuously talking in the neighborhood about the fights which plaintiff had had with other people." The amendment also alleged (in paragraph two) that on August 10, 1946, the plaintiff assaulted the defendant, and attempted to strike and beat the defendant, and approached the defendant in a "threatening manner and attitude with clenched fist and a vile epithet"; and that the defendant pushed or struck the plaintiff in efforts to protect himself from the assault and attack of the plaintiff, and with no intention of damaging or injuring the plaintiff.

Upon objections by the plaintiff that the matters set out in the proffered amendment were too remotely connected with the assault and battery to constitute a defense to the action the amendment was disallowed. Exceptions pendente lite were filed to that ruling and are now before this court. The defendant then amended his original answer by pleading justification. The jury returned a verdict for the plaintiff in the sum of $800 without specifying any particular amount for actual damages or for punitive damages. Defendant's motion for a new trial was overruled and he excepted. 1. In considering the ruling of the court disallowing the amendment we are mindful of the rule of law that conduct not amounting to a justification for an assault and battery may nevertheless be pleaded and proved in extenuation or mitigation of damages. Code, § 105-1802; Robinson v.DeVaughn, 59 Ga. App. 37, 52 (200 S.E. 213), and citations. This rule of law seems to contemplate that the jury may consider "the actions and conduct of the plaintiff at the time of the assault," with other facts, in determining whether the defendant was justified, and if not justified, what effect should be given to such facts as in mitigation. Hutcheson v. Browning,34 Ga. App. 276 (2) (129 S.E. 125). Where the plaintiff seeks to recover punitive damages, as well as actual damages, as in this case, the rule has been stated as follows: "Where there has been a breach of duty giving rise to a cause of action, and the injured party claims punitive damages, all the surrounding circumstances, accompanying the breach of duty, may be given in evidence to the jury." L. N. R. Co. v. Forrest, 6 Ga. App. 766 (3) (65 S.E. 808); Scott v. Reynolds, 70 Ga. App. 545,554 (29 S.E.2d 88).

Applying the principles of law stated to the facts of this case we think the court erred in refusing the amendment. The acts and conduct charged to the plaintiff in the amendment tended to show that he was quite unsatisfactory as a tenant, and was more or less obstreperous, stubborn and contentious, and that he had boasted repeatedly of his viciousness and fighting ability. The amendment set out and charged several acts and a course of conduct to the plaintiff, some of which acts were so closely connected with and related to the assault as to be pleadable in mitigation of damages if not in justification, and the amendment should have been allowed by the court. Furthermore, paragraph two clearly set up a defense, and the motion to strike or disallow the amendment was in the nature of a general demurrer and should not have been sustained to the whole pleading where parts of it were good. "General demurrer to a plea of which some parts are sufficient, should be overruled." Baer v. Christian, 83 Ga. 322 (2) (9 S.E. 790). Other cases to the same effect include Medlock v.Wood, 4 Ga. App. 368 (2) (61 S.E. 516), Epstein Bro. Co. v. Thomas, 15 Ga. App. 741 (3) (84 S.E. 201), Tuxworth v.Barber, 21 Ga. App. 748 (94 S.E. 1042), and DawsonProduction c. Assn. v. Connelly, 61 Ga. App. 889 (8 S.E.2d, 424).

2. Ground four of the amended motion for new trial complains of the refusal of the court to allow counsel for the defendant to propound two questions to the plaintiff on cross-examination. It appeared that the altercation, which culminated in the assault and battery complained of, arose over a dispute between the plaintiff and defendant as to whether the hogs belonging to the plaintiff and being kept in the defendant's pasture should be turned out. Defendant contended that they should and took steps to turn them out notwithstanding plaintiff's objections. On cross-examination defendant's counsel asked the plaintiff: "Why did you object to Mr. Smith turning your hogs out?" and "Did you have any reason to object to Mr. Smith turning your hogs out?" Both of these questions were excluded upon objection of counsel for the plaintiff. Counsel for the defendant stated to the court, "That goes to his good faith, . . and also goes to the question of whether or not his attitude and conduct at the time he claims this attack occurred was such as to provoke an attack." Even if the answers sought by the questions excluded were of doubtful relevancy, still we think the questions should have been allowed. "It has long been the rule in this State, when the admissibility of evidence is doubtful, to admit it and leave its weight and effect to be determined by the jury." Coart v. State,156 Ga. 536 (2) (119 S.E. 723); New York Life Ins. Co. v.Ittner, 54 Ga. App. 714, 717 (188 S.E. 920); Brown v.Wilson, 55 Ga. App. 262 (1) (189 S.E. 860). "Evidence which is only indirectly relevant to the issue on trial, but which tends somewhat to illustrate it, and to aid the jury in arriving at the truth of the matter, should be admitted."Walker v. Mitchell, 41 Ga. 102.

"The right of cross-examination, thorough and sifting, shall belong to every party as to the witnesses called against him." Code, § 38-1705. The right of either party to a suit to subject to a thorough and sifting cross-examination the witnesses against him "is a substantial right, the preservation of which is essential to a proper administration of justice, and extends to all matters within the knowledge of the witness, the disclosure of which is material to the controversy. . . The manner and extent of a cross-examination are, to a certain extent, within the control and subject to the discretion of the presiding judge, but the substantial right should neither be abridged nor denied."News Publishing Co. v. Butler, 95 Ga. 559 (22 S.E. 282). The right of cross-examination, thorough and sifting, which belongs to every party as to the witnesses against him, is especially applicable where the witness is the opposite party to the cause on trial. Barnwell v. Hannegan, 105 Ga. 396 (31 S.E. 116); Becker v. Donalson, 133 Ga. 864 (67 S.E. 92);W. A. Railroad v. Peterson, 168 Ga. 259, 266 (147 S.E. 513); Williamson, Inman Co. v. Thompson, 50 Ga. App. 564 (4) (179 S.E. 289); Owens v. Shugart, 61 Ga. App. 177 (6 S.E.2d, 121). A material abridgment or denial of the substantial right of cross-examination of opposing witnesses is material error and requires the grant of a new trial. Holt v.State, 2 Ga. App. 383 (3) (58 S.E. 511); McRae v.Boykin, 50 Ga. App. 866, 875 (179 S.E. 535); McGinty v.State, 59 Ga. App. 675 (2 S.E.2d 134); Becker v.Donalson, supra. "As a general rule it is better that cross-examination should be too free than too much restricted."Harris v. Central Railroad, 78 Ga. 525 (3) (3 S.E. 355). We think the ruling complained of in this ground requires a new trial.

Counsel for the plaintiff argue that at the time the questions were asked the defensive pleadings consisted only of a general denial of the plaintiff's petition; but the record does not sustain this contention. It appears from the bill of exceptions, and the portions of the record specified therein, that the trial began on April 17, 1947, and on that same day an amendment pleading justification was filed and allowed. The bill of exceptions, after reciting that the first amendment offered was disallowed, says that "thereafter the defendant presented another amendment which was allowed and filed." We cannot assume as a fact something which does not appear from the record and base a ruling thereon.

3. The exclusion of certain questions and the anticipated answers propounded to the defendant, as complained of in ground five, was not erroneous because substantially the same evidence sought by the questions was admitted without objection in other parts of the defendant's testimony. Goodwyn v. Roop, 53 Ga. App. 847 (187 S.E. 127); Head v. Georgia Power Co., 70 Ga. App. 32 (4) (27 S.E.2d 339).

4. The general grounds are not considered.

Judgment reversed. Sutton, C. J., and Felton, J., concur.