Duane v. Miercken

Yeates, J.^*

I feel myself as much bound by my official duty, to exercise a known legal discretion in the present instance, as in any case whatever, which can come before us. This verdict is opposed, as being plainly contrary to evidence. It has been stated by Judge Smith who tried the cause, that the testimony .given by the plaintiff, was expressly the same as that adduced in the trial against John Dunlap, and that he read it from his notes. Engle only was examined on the trial, and his testimony was # 1 *confined to the declarations of the defendant, after the 44 J commission of the act.

The special collateral issue was, whether the trespass and' assault and battery were the same, or distinct and different, from those instituted against Dunlap. We well know, that what all the trespassers did, was given in evidence against Dunlap; upon the ground, that all were principals in the trespass, and each person responsible for the acts of the others ; and that the whole court sanctioned that doctrine. It is not at present a matter of inquiry, whether the damages assessed against Dunlap, were adequate or inadequate to the whole injury sustained. No different evidence of a new and distinct trespass was adduced against this defendant; and I cannot hesitate in declaring, that the verdict was against the evidence, and that the rule be made absolute.

Smith, J.

In my charge to the jury, I cautiously avoided

the intimation of any opinion, whether the damages found against Dunlap, for the joint trespass, were sufficiently high, under all the circumstances of the case.

But it was impossible for me to doubt, whether it was the same trespass. The same evidence was given in both suits, except the testimony of Engle, which does not vary the case ; nor was it even pretended, that there was any other trespass at a different time or place. I therefore clearly think, there should be a new trial. .

Bracicenridge, J.

I differ. Fdr a joint trespass, the plaint-

iff has his election to bring a joint or several action. In my idea, the whole matter could not be taken into view by the jury who tried the action against John Dunlap ; nor is it possible for me to believe, that one man should pay for the blows inflicted by another. This cause was submitted to the jury, on the single point, whether it was the same assault, battery and wounding, as that formerly tried against Dunlap. The jury have found that it was not, but a distinct trespass, and have assessed damages. And this, I am of opinion, is conclusive on the court.

Cited in 13 Pa. 409, in support of a decision that a joint trespasser is a competent witness on the part of the plaintiff, in an action of trespass, against others of the trespassers.

Rule made absolute.

* Tilghman, C. J. took no part in the argument, having been formerly of coun sel with one of the defendants.