Byers v. Horner

evidence. Assault and Battery — Provocation—Exemplary Damages— lies Gesta: — Mitigation of Damages — Prayers and Instructions. In an action for assault and battery the animus of the party assaulting is certainly material, but proof thereof must not be too remote: any acts or declarations, indicative of the existence of malice or ill-will on the part of the defendant towards the plaintiff at the time of the wrong committed, may be given in evidence to prove malice. The rule is well settled that the defendant in mitigation of damages may give in evidence, under the general issue, a provocation by the plaintiff, provided it was so recent and immediate as to induce a presumption that the violence was committed under the immediate influence of the passion thus wrongfully excited by the plaintiff. And for the same purpose the defendant may rely on the res gestee, though, if pleaded, it would amount to .a justification; and this notwithstanding the general rule that whatever is to be shown in justification must be specially pleaded. Whore proof is offered generally, the party offering it is not required to declare the purposes specially for which it is offered, and it would be error to reject it, if admissible for any purpose under the pleadings. Where proof is offered for a special purpose only, and it be inadmissible for that purpose, it will be rejected, oven though admissible for another purpose. Where evidence is offered for several purposes, and it is admissible for any one of these purposes, a general objection will not be sustained. Declarations of a third party, made after an act committed, though inadmissible for any other purpose, are admissible to show the feelings and prejudices under which the party testifies concerning that act. A prayer based upon all the facts of a case and having reference to them, and leaving the jury free to consider all the facts of the case, enumerated in a preceding prayer, and instructing the jury that they are at liberty, if they shall find a given state of facts, to award such exemplary damages as the circumstances of the case might in their judgment require, is a prayer proper to be granted. In awarding damages in an action for assault and battery the jury arg not confined to the mere corporal injury the plaintiff may have sustained: they are at liberty to consider the malice of the defendant, the insulting character of his conduct, the station in life of the several parties and all the circumstances of the outrage.

Appeal from the Circuit Court for Carroll County. This was an action of trespass, instituted on the 7th day of July, 1875, by Benjamin W. Byers against Geo. W. Horner, to recover damages for an assault and battery committed by Horner on Byers. The declaration alleged that the defendant committed the assault with clubs, sticks, &c., inflicting great bodily damage. The defendant pleaded three pleas : 1st, did not commit the wrong alleged. 2nd and 3rd, that the said assault was committed in defence of his daughter. Issues were joined upon these pleas. Plaintiff’s Exceptions. — 1st. At the trial evidence was offered by the plaintiff giving the details of the assault, proving that there was a difficulty between his (plaintiff’s) wife and defendant’s daughter, which ended in a scuffle: plaintiff’s wife called upon him for assistance: he went and separated the defendant’s daughter from his wife : had nothing in his hand at the time : did not use defendant’s daughter roughly; shortly afterward he was assaulted by the defendant who charged him (plaintiff) with striking his daughter. After relating his account of the present assault, for which the action was brought,'plaintiff’s counsel asked witness; “If the defendant had not in the years 1873 and 1874, previously committed several assaults upon the plaintiff or threatened him with assaults?” To which question objection was made by the defendant, when plaintiff’s counsel stated to the Court that he offered the proof for the purpose of showing that the defendant had hostile feelings towards plaintiff at the time of and prior to said assault on the 30th June, 1875, and that he did not offer the proof to claim damages for any previous assaults ; but the defendant objected to the admissibility of said proof and every part thereof, and the Court sustained the objection and refused to allow the proof offered or any part of the same to be given ; to which ruling of the Court the plaintiff excepted. 2nd. The defendant to maintain the issues on his part, offered to prove by Fanny Horner, his daughter, and a competent witness, that on the occasion of the alleged assault, the plaintiff and his wdfe and daughter first assaulted the daughter of the defendant, Fanny Horner, and that the fact of those assaults or of some of them were communicated to the defendant, who thereupon immediately went to the relief and defence of his children, and that as he came in sight of the plaintiff, he was assaulting Bettie Horner, another daughter of the defendant, and that under the influence and feelings produced by the said communications made to him, and of the view of the assault of his daughter Bettie Horner, by the plaintiff, he assaulted the plaintiff; and offered to prove all the facts and circumstances connected with the assault on the plaintiff by the defendant, and all of the facts and circumstances leading to and connected with said assault, for the purpose of showing the character of said assault, and the motive which prompted it, and for all purposes for which they are legitimate and admissible ; whether of contradiction, in mitigation or in bar. The plaintiff objected to the admissibility of said proof offered under the pleadings in the cause, and called on the defendant’s counsel to state for what purpose the said proof was offered; the defendant’s counsel stated that the proof was offered to maintain the second plea and also in mitigation of damages. Whereupon the plaintiff objected to its admissibility under second plea, unless defendant’s counsel would state to the Court that he would offer proof to show that the said proof offered, related to an occurrence taking place at the same time of and immediately-connected with the assault and battery complained of in the narr.; and the plaintiff objected also to the admissibility of said proof offered in mitigation of damages, unless the defendant’s counsel would state to the Court that he would offer proof to show that the alleged assault by the plaintiff and his wife and daughter, upon the witness, and the alleged facts and circumstances of the alleged affray between the said plaintiff and his wife and daughter and the said witness, had not fully ended and terminated prior to the assault and battery of the defendant upon the plaintiff, complained of in the narr. But the Court refused to require the defendant’s counsel to make any further statement in connection with the proof offered than he had stated as before, and overruled the plaintiff’s objections, and permitted the proof offered to be given to the jury; whereupon the plaintiff excepted. 3rd.' Evidence was then offered by the defendant proving the matters which he offered to prove, as set out in the second exception, after which defendant’s counsel asked defendant the following question : “When you and Byers, the plaintiff, reached Byers’ gate, did Mrs. Byers interfere ; and if so, state what she then and there said and did, if anything?” The plaintiff objected to the admissibility of the acts and declarations of Mrs. Byers, and to the questions asked and to the proof offered. But the Court overruled the objection and allowed the question to be put and the proof offered to be given. Whereupon the plaintiff excepted. 4th. In answer to the foregoing question, the defendant proved that when he and. plaintiff reached said gate, and Byers, the plaintiff, passed into the same with his horse, defendant stopped at said gate, when the plaintiff’s wife called him a son-of-a-bitch, and a hypocrite, and said he should pay for beating her husband, and that after that no further blows were struck; whereupon, the plaintiff’s counsel moved the Court to strike out the proof given of the said sayings of plaintiff’s wife after the ending of said assault and beating, and to instruct the jury not to consider the same, but the Court refused the said motion and refused to strike out said proof. Whereupon the plaintiff excepted. 5th. Another motion was made by counsel for plaintiff to strike out evidence, and overruled by Court. (Sufficiently stated in 4th Exception.) Gth. The plaintiff offered ten prayers and the defendant five: the Court granted the first, third, fourth, seventh and ninth prayers of the plaintiff and rejected the others: and granted the third and fifth prayers of the defendant and rejected the others. To the rejecting of the plaintiff’s and the granting of the defendant’s prayers, the plaintiff excepted. The plaintiff’s first and second prayers are as follows : 1. The plaintiff, by his counsel, prays the Court to instruct the jury on the pleadings and all the evidence in this case, that if the jury believe from the evidence that on the 30th day of June, 1875, the plaintiff was in the act of leading by a halter a horse over the plaintiff’s fence from the land of the plaintiff into the public road or turnpike, for the purpose of taking said horse to the plaintiff’s stable, at a distance of between forty and fifty yards from said point at said fence, and that defendant came up behind plaintiff at the time when plaintiff had just stepped over said fence into said road or turnpike, and whilst said horse was passing over said fence and standing on plaintiff’s ground, at or near said fence, said to plaintiff, “ did you strike my child or daughter,” or “ you struck my child, did you,” or words to that effect, and instantly struck with great force and violence plaintiff on and upon his back and the back part of his left shoulder, with a stick or pole 5 or 6 feet in length, holding the same in both the hands of the defendant, before the plaintiff had an opportunity to make any reply, and that simultaneously with- said blow, or at the same instant that said plaintiff received said blow, plaintiff replied “no sir, I did not strike your child,” or words-to that effect, and that defendant instantly struck plaintiff another blow with said stick or pole on and upon his said back and shoulder in the same manner with said first blow, and that plaintiff at the same instant repeated his said denial that he had struck the defendant’s child, and walked rapidly or run, still holding said halter of said horse, away from defendant, and endeavored to escape from said defendant, and that defendant pursued the plaintiff, and immediately after said second blow struck plaintiff a third blow with said pole or stick, in the same manner with said first blow, and that plaintiff repeated his said denial that he had struck the defendant’s child, and that plaintiff continued to run and try to escape from the defendant and from said blows, and that defendant continued to pursue the plaintiff on and along said public road or turnpike for a distance of between forty and fifty yards, and continued to strike plaintiff other and repeated blows in the same manner with said first blow, as rapidly as plaintiff could draw back said stick or pole and repeat said blows on and up the said back, shoulder and head of the plaintiff, until the plaintiff reached the gate leading into his said stable and immediately adjacent to plaintiff’s dwelling house, if the jury so find, and until the plaintiff’s wife opened said gate and the plaintiff escaped and passed into the same, if the jury so find; and if the jury shall further find, that the plaintiff’s wife and daughter witnessed the said assault and beating of plaintiff from the beginning to/ the end thereof, and that the defendant knew that they did or could witness the same from the position which they occupied, if the jury so find; and shall further find, that said assault and beating took place in the Village of Einksburg, and that said road or turnpike before mentioned, constituted and was the street of said village, if the jury so find, and that the said assault and beating was witnessed by several of the residents of said village, and amongst others by George Whittle and William H. Baxter, witnesses in the case, if the jury so find ; and shall further find, that after said beating by defendant, the head of plaintiff was found to be cut in three several places, and large quantities of blood flowed therefrom, if the jury so find, and that said cuts or any of them were inflicted by said blows so struck by defendant, if the jury so find, and also that the back and back part of said left shoulder of plaintiff were much bruised, and had on them large welts and bruises, all black and blue color, if the jury so find ; and shall further find that said bruises and welts were caused by and resulted from the said blows inflicted by defendant; and shall further find that plaintiff was disabled for five, six ox-seven days by said beating, from pursuing his ordinary avocations, the plaintiff is entitled to a verdict in this case. 2. That if the jury find the facts set forth in the foregoing prayer, they are at liberty in fixing the amount of damages to be given by their verdict, to take into consideration all the facts and circumstances in said first prayer mentioned, if the jury find the same, and also the insulting conduct of the defendant in inflicting said assault and beating, if the jury so find, the outraged feelings of the plaintiff, the mental agony suffered by the plaintiff, if the jux-y so find, the plaintiff's age, rank and condition in life, and all the circumstances attending said assault and beating, if the jury so find, and to award by their verdict such exemplary damages as the circumstances of the case in the judgment of the jury require.