Summary
Appeal, No. 43, Jan. T., 1908, by defendant, from judgment of O. P. Fayette Co., Dec. T., 1906, No. 34, on verdict for plaintiff in case of William S. Wirsing v. James R. Smith.
Trespass to recover damages for personal injuries caused by aggravated assault and battery. Before Reppert, P. J.
At the trial it appeared that plaintiff, while under age, ran away with defendant’s daughter, about eighteen years old, and married her. The couple returned to the house of the plaintiff’s father. While there they received a letter from defendant expressing his forgiveness, and inviting them to dine on a day stated.
The court in its charge described the assault as follows:
In acceptance of this invitation the young man and his wife drove to Smithfield upon the day named, reaching there about 9:30 in the morning. After hitching the horse in the alley below the defendant’s house, they approached the front door. Just then the defendant called out, “ Is that Bill Wirsing ? ”— the plaintiff was on the portico — the defendant called out again, “Is that you, Bill Wirsing?” and the plaintiff stepped out about two steps. Mrs. Smith, the defendant’s wife, was just inside the door and called to her daughter, Martha, who had come to the door when the plaintiff and his wife had stepped up on the portico, to come inside. As the plaintiff stepped back the two steps he speaks of, he saw the defendant bringing his rifle around out of an upstairs window. The plaintiff jumped back just as the defendant fired, the shot taking effect in the third finger of the right hand, severing it, or almost severing it.
After the shot was fired, the plaintiff told his wife that the best thing they could do was to stand there until the defendant started downstairs, and then try to escape up the street. They heard the defendant start across the room upstairs, and when he got to the head of the stairs they started to run up the street. The defendant came out of the house and fired the second shot, which missed. The plaintiff says he fell just as that shot was fired and it failed to take effect. A third shot was fired which took effect in the right arm of the plaintiff, and then a fourth, which missed.
The plaintiff continued running, and by an alley, reached Grim’s butcher shop and asked to be concealed, disclosing his condition — that he had been shot. He remained there until his wife came, and he was then taken to a hotel across the way where his wounds were dressed, and whence he was removed to the hospital at this place.
The plaintiff’s statement of the transaction is corroborated by his wife. Other witnesses,, attracted by the first shot, saw the defendant fire the three shots from the outside, in the street. They say that his .aim was deliberate, and that,between the shots he advanced up the street, returning to his house after the three shots were fired.
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The defendant'doesn’t deny that the encounter that resulted in the plaintiff’s injury took place substantially as the plaintiff alleges, nor is it denied that he is entitled to fair compensation for his injuries, as the jury may determine them to be. But it is claimed in his behalf that the circumstances are such as to prevent the imposition of exemplary or punitive damages ; that for a month prior to this trouble the defendant had given bimself up to the excessive indulgence in liquor, drinking from a quart to three pints per day, and that the marriage of his daughter, without his knowledge and consent, brought him great trouble and anxiety, and, in his condition, resulted in great nervous tension; that after learning that his daughter and Mr. Wirsing had left home, he and Mr. Sackett-went to Cumberland in the hope of intercepting them, and that while on that trip Mr. Sackett said the defendant drank several times while they were in Connellsville, and that during the trip his principal talk was about his daughter, crying and making considerable fuss and talk, as the witness expressed it: On June 5 the defendant was in Dr. Altman’s office, and the doctor says he was strongly under the influence of liquor, and that while he, the doctor, did not examine his physical condition, he prescribed for him for excessive drinking. The defendant related to the doctor the story of his daughter’s élopement. On the day of the shooting, after hearing of it, Mr. Sackett went to the defendant’s house and saw him for a few minutes, and found him lying on the bed and pretty stupid. The defendant says that when he wrote the letter to his daughter, inviting her and her husband and others to dinner, he meant what he said ; that when Wirsing and his wife arrived he was upstairs, reading a newspaper ; that he had been drinking, having taken a heavy-drink fifteen minutes before ; that when Wirsing drove past the sight of him made him so mad that he lost control of himself and his head began to roar, which was the last he remembered until his boy took the gun from him in the street; and that he knew nothing of what he did that day until his wife, the next morning, told him what had occurred.
At the trial the defendant made the following offer :
Mr. Hertzog: As a beginning of the course of conduct between the plaintiff and defendant, which continued in various ways up until the time that the shooting occurred, I propose to show by this witness, that four or five years ago a sister of the plaintiff wrote a letter to thé brother of the plaintiff’s wife, in which she stated that the reason' that their father, H. C. Wirsing, had purchased the farm from Mr. Smith, was that he wanted his daughter, who was writing the letter, to marry Joe, a son of the defendant, and his son Will to marry Malinda, a daughter of the defendant, and one of them could live on that farm, and Mr. Smith was able to buy the best property they could want in town for the others to live on, and it made no difference how much their “ pap,” meaning Smith, would oppose the marriage, they could arrange it to have them married, anyhow ; that they could run away to Cumberland and get married. This was followed by another letter in a short time, in answer to the first letter, and repeating, in substance, matters that she had suggested in the first, and that these letters were burned by Smith and his wife at the time they were received. This for the purpose of introducing the matters between the two families; leading him to believe that it was the plan of the father of those children to try to get them married to get control of his money; and is offered as one step in the general evidence to follow on up to the timfe the shooting occurred, to show the condition of mind Smith was in when the shots were fired, for the purpose of mitigating the punitive damages, the children at the time being eleven or twelve years of age.
Mr. Crow: The plaintiff objects to the testimony as being incompetent and irrelevant, for the reason that it doesn’t connect William Wirsing with the transaction.
The Court: Objection sustained and exception. [1]
Mr. Crow: “ Q. Mr. Smith, I will ask you if at the time you were sentenced, the court didn’t make you the proposition that if you would settle with this young man — ■”
Mr. Hertzog: We object. We want you to make that offer privately..
Mr. Crow: The plaintiff offers to ask the defendant, if at • the time the sentence was imposed upon him the court did not state, that if within the term the case for damages was settled, a portion of the sentence, not exceeding one-half, would be remitted.
Mr. Hertzog: The offer is objected to as incompetent and irrelevant, for the following reasons: First, the proposition so made by the court did not include in it any amount at which the case for damages should be settled. Second, that it is incompetent and irrelevant, generally; and third, the offer made was in the line of various attempts that had been made towards a settlement of the case between the parties, which had failed, and is, therefore, not competent evidence to be introduced here, being in the nature of a compromise offer.
The Court: Objection overruled and exception. [2]
Defendant presented these points:
Punitive damages cannot be recovered in this action for the reason that the defendant has been sentenced to a long term of imprisonment, by the court of quarter sessions of this county, for the same act as that upon which this suit is based and which term of imprisonment he is now serving. Answer: Refused. [3]
The plaintiff is only entitled to recover such amount in this action as will compensate him for the injury and loss sustained by him by reason of defendant’s conduct, and the jury cannot add an additional amount by way of punishment for the public crime committed by him. Answer: Refused. [4]
Yerdict and judgment for plaintiff for $45,000. Defendant appealed.
Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions; (3, 4) above instructions, quoting them.
5. The court erred in omitting in its general charge, to instruct the jury as requested by defendant by his counsel as follows:
Mr. Hertzog: The offer made on the part of the defendant, of the record of the cases in the quarter sessions of the peace of Fayette county against the defendant, was restricted in the offer, to the one purpose of the mitigation of punitive damages, and for this reason the counsel in his argument had no right to use it as he did — to claim that that offer, in effect, proved that the defendant committed this act willfully and maliciously, and that it, therefore, destroyed the effect of the defendant’s testimony as a witness in that regard. And it is further the duty of the court to so instruct the jury, as to withdraw from them, in its general charge, the right to use this offer for any other purpose than that to which it was restricted in the offer itself, and the defendant objects to its use for any other purpose.
6. The court erred in overruling the motion to set aside the verdict as unreasonable and excessive, such action and refusal to grant the motion being a misuse and abuse of the court’s discretionary power in passing upon an application for a new trial.
7. It was an abuse of discretion and, therefore, error on the part of the court below to not sustain defendant’s motion for a new trial upon the first reason assigned in support thereof, which motion and reason are as follows: The defendant, by his counsel, respectfully moves the court for a new trial, and assigns in support thereof the following reasons: 1. The verdict is excessive and unreasonable under all the evidence in the case.
8. The court erred in making the following final order, to wit: November , 1907, this matter came on to be heard and was argued by counsel as on a rule to show cause why a new trial should not be granted.
And now, December 2,1907, after consideration, it is ordered that a new trial be granted in this case unless plaintiff within ten days file a stipulation that he will accept in full satisfaction of his claim the sum of $35,000, to be paid, or security approved by the court to pay the same to be given, within thirty days after notice of the filing of said stipulation to defendant or his counsel.
If said stipulation is filed and payment of said amount, with interest from the date of the verdict and costs, is not made or secured as aforesaid within thirty days, then judgment is to be entered on the verdict, as rendered upon payment of the jury fee. No payment was made or secured, and judgment was entered on the verdict.
9. The court erred in charging the jury as follows; especial attention being directed to those portions of the charge enclosed in brackets ; quoting the whole charge.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
