Bell v. Morrison

Where there were several defendants in a suit, and on the trial after the evidence on both sides had been adduced, the defendants moved the court that the jury should retire and ascertain whether, upon the evidence, they should not acquit one of the defendants, in order that he might be a witness for his codefendants, which was granted at a term of the court preceding the final trial of the cause; and the jury returned a verdict of guilty, but assessed no damages against that defendant: Held, that this proceeding being taken at the instance of the defendants themselves and for their benefit, no part of the object being to render a judgment for any amount for the plaintiff, it cannot be considered a judgment against that defendant. This mode of proceeding to render that defendant a competent witness for his codefendants, was irregular and improper; and the proper course would have been, for the court to direct the jury to acquit him, if there had been no evidence at all tending to inculpate that defendant, in order that he might be admitted to testify. But where there is any evidence tending to charge the defendant in such a case, whose testimony is desired, or in a doubtful case, upon the testimony, such a direction could not properly be given to the jury. Although such a proceeding was irregular, the defendants are not to be permitted to complain of it because it was done at their own instance, and in nowise for the benefit of the plaintiff: Held, therefore, that such defendant would be an incompetent witness for his codefendants. Acts and declarations of one of the parties during the continuance of a difficulty, and before they had entirely separated, showing circumstances of aggravation, are admissible against all the parties implicated. It is a well-settled rule, that in actions for injuries to the character or to the person, the jury are not restricted in giving damages to the actual positive injury sustained by the plaintiff, but may give damages as a punishment against the defendant. This rule can only be properly and effectually applied by taking into consideration all the circumstances whether of aggravation or mitigation of grievances complained of, the situation of the parties as to wealth, character, and influ'ence. Held, that if the principle of exemplary damages be sound, it is proper to inquh-e into the pecuniary condition and circumstances of the defendant. In-actions for the joint tort of the defendants, who join in their pleas, it is held to be proper for the jury to assess damages against all the defendants jointly, according to the amount which in their judgment the most culpable of them ought to pay; for what would be competent testimony with that view as to one, would be competent as to all, the defendants. The previous declarations of the plaintiffs, which should not have been made ■with reference to tlic difficulty as to wliat was his object in going to the place, are clearly competent evidence. The court below was correct in refusing the first, second, third, and fourth instructions asked by the defendant. In cases of this character, the matter of damages rests almost unrestrictedly with the jury; and unless they are so extravagant as to induce a suspicion of improper conduct, the court will not interfere with the verdict. The introduction of testimony to show the quantity and value of the property of one of t!ie defendants with a view of increasing the damages, was illegal, — Fisiikk, Judge, dissenting.

In error from the circuit court of Noxubee county; Hon. John Watts, judge. Neil Morrison sued Tyrus Bell, William Bell, Vincent Bell, Bird Farmer, John Dawson, and Matthias Crotty, in the circuit court of Noxubee county, in an action for damages for an assault and battery committed on him by the defendants. The suit was subsequently discontinued as to Vincent Bell. The defendants pleaded, “not guilty,” molliter manus imposnii, and son assault demesne, all, in short. A verdict of $1,200 was found by the jury for the plaintiff. The testimony is conflicting; but it seems the parties were gathered at a grocery on Christmas day, A. D. 1847, and they were drinking, and a difficulty first took place between Tyrus Bell and plaintiff, in which Bell wounded said defendant with a bucket, and afterwards several other fights occurred during the day, between the plaintiff on one side and the defendants on the other, in which all the defendants either struck the plaintiff' or were urging on those who did strike him. It was in proof that plaintiff was badly bruised so that he was confined to his room for some time, a portion of the time was delirious in consequence of the wounds received from the defendants, and for several weeks was unable to attend to his business, — that it was several months before his wounds healed up; and it was also proved that plaintiff (Morrison) went to the grocery for the purpose of getting cotton to load his flat-boat. The plaintiff proved that Tyrus Bell was a man of considerable property. This is about the substance of the testimony. The charges of the defendants below, refused by the court, are contained in the opinion of the court. The jury found a verdict as above for the plaintiff, and the defendants moved the court for a new trial, which was refused, and they then prayed a writ of error to this court. Morrison sued Tyrus Bell, William Bell, Vincent Bell, Bird Farmer, John Dawson, and Matthias Crotty, for assault and battery. Suit discontinued as to Vincent Bell. Defendants pleaded not guilty, molliter manus imposuit, and son assault demesne, — all, in short. There was a verdict of $1,200 against all the defendants. The testimony was somewhat conflicting, but it is manifest there is no proof, to justify the verdict. It seems, the parties were gathered at a grocery on a Christmas frolic; that the difficulty commenced in the grocery, and terminated out of it. Pride, a witness, shows how the fight begun. The parties were in the backroom of the grocery, and had been drinking and chatting. After a time, T. Bell proposed to get another bucket of liquor for the company, when Morrison objected, and said every man should buy and drink his own liquor. Bell replied, that he did not care a damn, and immediately passed out to the front door. Morrison and one Thomas immediately followed him, and came up with him at the front door. “ Thomas immediately struck, and both Thomas and Morrison jumped upon said Bell.” We thus learn that plaintiff and Thomas commenced the fight, by an assault on T. Bell — two to one. The witness says further, that, as soon as it was said that T. Bell was in a fight, his son, William Bell, and his nephew, Vincent Bell, rushed in to his assistance, and the fight became general. He says that Morrison got upon and scratched Bell, until he was pulled off, and then seized a bedpost and attempted to strike Bell, while Thomas had him down. He did not see Dawson or Crotty strike plaintiff. There was a second fight in the backroom, as to which witness does not particularize. Thomas seems to think that the difficulty began differently. He says that Bell got mad and struck him, and got him down, and Morrison pulled Bell off; but this witness shows how incompetent he was to notice particulars on that occasion. He says, “ I was drunk; do not remember what we were doing; I do not remember whether it was in the morning or evening; I do not know what happened between us.” Hawes, a witness, says he saw the Bells and Crótty after the difficulty with Thomas they all had sticks. That T. Bell asked where was the d — d old rascal, some one replied that he was in the house, and T. Bell said let us go in and kill the d — d old rascal, and they went in. Witness heard a noise in backroom, went in and first saw Vincent Bell strike Morrison with a board. T. Bell struck him with a stick. The parties went out, witness following slowly; after getting out, saw T. Bell with a bush, and saw William Bell knock Morrison down. Saw no fight out of doors. When Morrison started home on his mule, saw T. Bell strike at him with a brush. Did not see Crotty or Dawson take any part in the fight, or strike a lick. Thomas was very drunk. M'Clanahan says that, after the first fight, he saw T. Bell, and remained with him; was with him before tlie time that Hawes speaks of, and saw Plawes. Witness had T. Bell by the hand, and knows he did not use the words imputed to him by Hawes. Witness was cool and sober, and went into the house with T. Bell, into the backroom where the fight had commenced, not knowing there was any one there. When they went in, Morrison was standing by the fire washing the blood from his face. When Bell went in and Morrison saw him, “ they seized each other simultaneously.” Morrison threw Bell, and got on him, and witness parted them. There was a fight afterwards out of doors, no more fighting in the house. Morrison then went out, and Bell remained in the room with witness; during that fight in the house no lick was struck. Witness held Bell, after he parted them, and knows he did not strike. After Bell and witness had remained a few moments, they went out. Witness adds, “ when I got out I saw William Bell knock Morrison with his fist; here the difficulty stopped. Tyrus Bell did not strike Morrison after he got out of doors; this I know, because I went out of doors with him and held hold of his hands all the time until the difficulty stopped. I know and positively state that Tyrus Bell did not strike plaintiff a single lick either in the house or out of doors.” When the first difficulty occurred, witness was not present. Thomas was very drunk. Neither Crotty or Dawson struck a lick either in or out of the house. Hinkle first saw Thomas run out of the house, and heard noise of a fight in the backroom, went in, and saw “them” on the floor in a pile; T. Bell on the floor; defendants engaged in fighting Morrison; Morrison went, or was pushed out; T. Bell pursued, and other defendants followed. Witness caught T. Bell and pulled him back into the room to the fire, and they sat down. There ,was a cry of kill him, and Bell went out and struck Morrison on the head, and one and another of defendants would go and strike him, &e. “ All the defendants were engaged out of doors in fighting Morrison.” On cross-examination, he says that neither Dawson or Crotty struck a blow. It was a very short time between the first and second fights. Thomas was not very drunk. T. Bell struck Morrison four or five times in the house, and four or five times out of it. MiClanahan says this witness was in liquor, and the probability is, that he was too drunk to know what happened, and proves that Plinkle had admitted the falsity of his statement that the parties were all on the floor in the backroom. Yet Hinkle says he drank none. Gray proves that plaintiff said he would have killed T. Bell, on the first fight in the backroom, if he had not been prevented. ■ Hawes did not see Plinkle stop T. Bell and carry him in the backroom, as that witness avers, but, as witness passed out on that occasion, he saw T. Bell outside. Wharton saw T. Bell strike Morrison, outside of house, two or three times. The proof shows that'plaintiff was badly bruised, but shows no special damage. Tyrus Bell was intoxicated, as were most of the parties. It is plain, from the whole proof, that plaintiff and Thomas commenced the fight with Tyrus Bell. Pride is the only witness who saw the first assault, and he proves that it so began. The other witnesses admit that they did not witness its beginning. Now there was a plea of son assault demesne, by consent, and issue in short. What was that issue ? I infer that it was a denial de injurid, and not a confession of the plea and an averment of excessive beating, which could be the only other response to that plea. In such cases, issue in short is always understood to mean a denial, and not a confession and avoidance of the plea. If to a plea of son assault, plaintiff would show excessive beating, he must so reply specially. Dale v. Wood, 17 Eng. Com. Law, 69; 2 Stark. Ev. 824, 5, 6, 7; Brotan v. Bennett, 5 Cow. 185; 1 Whea. Selwyn, 36. Of course such replication would conclude with a verification, and an issue would be tendered in the rejoinder. As the words issue in short import an issue made by the replication, we must understand that plaintiff denied making the first assault. What does the proof show in support of this plea? As I have said, it shows that plaintiff did make the first attack on Tyrus Bell, and the verdict should have been for him. So it should have been for his son', William Bell, who interfered to defend his father. There is, therefore, an erroneous verdict, and it must be wholly vacated. But, it may be said, there were three several fights. I think the proof shows the contrary, and that the whole was the continuation of one drunken quarrel. If it was otherwise, where is the proof to convict all of the defendants, and support the verdict ? • To sustain it, plaintiff must rely solely on Hinkle, whose testimony is contradictéd by both M‘ Clanahan and Gray. And how does Hinkle implicate Dawson? He says that neither Dawson nor Crotty struck a blow, but that Crotty urged on the fight in the backroom, and Dawson cried “ go it, my Bell.” The proof shows that this was the second scuffle between plaintiff and T. Bell, and this was begun, as M'Clanahan shows, by Morrison’s clinching Bell. It was a mutual affair between them, and the mere exclamation of Dawson, or urging of Crotty, could not render either guilty, in such a case. Noicould a verdict go against Tyrus Bell because of such a contest. Then as to the matter out of doors, the proof shows that all of the defendants did not participate in it, and if the verdict against all, was based upon that part of the fight, it was wrong. There is no pretence that Dawson or Crotty participated in it. It is true that Hinkle, on direct examination, seeks to implicate them; but he expressly exculpates them on cross-examination. II. The court erred in refusing charges asked for defendants. Their first charge was, that if Morrison began the first fight, and the whole affray was but a continuation of the fight so begun, they should find for defendants. If such was the fact, and it was for the jury to decide, it is plain that the verdict should have been for defendants, on the plea of son assault. Under the issue upon that plea, the sole question was, Whether plaintiff began the fight. The second charge was the same, except that it related to Tyrus Bell only. Their fourth charge was, if the fights were separate and distinct, and any one of defendants was engaged in them only in self-defence, the ‘jury will find for such defendant. Surely, plaintiff was entitled to no recovery against a party who acted merely in self-defence. III. The damages were excessive. There was no proof of any special damage, and it was not a case for vindictive damages. Public policy, morality, and justice, alike require that a party to a drunken revel, who has provoked a fight with his boon companions, shall not be heard to demand smart-money for bruises received under such circumstances. And it is clearly shown that plaintiff and Thomas did commence the assault. The parties were intoxicated, actuated by whiskey and not by malice; and, in such a case, smart-money should not be awarded. Gray proves the admission of plaintiff, that he would, in the first fight in which he was clearly the aggressor, have killed Tyrus Bell, if he had not been prevented. Shall a plaintiff, who thus admits murder in his heart, demand extraordinary damages, on account of society, for bruises received by him in an affray provoked by himself? Admit that the others were guilty, for what acts of Crotty, or Dawson, could plaintiff demand this recovery of ¡§1,200 ? The pleas in this case are, 1st. Not guilty. 2d. Son assault demesne. 3d. Molliter manus imposuit. Let us briefly consider the nature of the second and third pleas, the matters they put in issue, and the proof requisite to sustain them. It will be noted by your honors, that these pleas were not put in technical form; they were simply, by name, stated to be the matters pleaded by the defendants. The second plea must be held to admit the battery, and other injuries complained of in the declaration, and justify them on the ground that they were inflicted in resistance of an assault first made by the plaintiff. They must not be unreasonable, or disproportioned to the character of that assault, but simply the force requisite to defend and repel the plaintiff’s assault. The defendant cannot, in any case, justify an actual beating and wounding, unless he shows in his plea that force was used, or attempted, on the part of the plaintiff; but still, he may justify the beating, that is to say, what in law amounts to a battery, by way of molliter manus imposuit. Again, a justification by way of molliter manus imposuit, admits a battery. 3 Ch. PI. 1067, note a. This plea merely puts in issue matters in excuse, as, for example, in the precedent contained in Chitty, and Saunders, “ the defendant says, that the plaintiff, just before the said time when, &c., to wit, on the day and year aforesaid, with force and arms made an assault upon the defendant, and would then have beaten and ill treated the defendant, if he had not immediately defended himself against the plaintiff. Wherefore the defendant did then defend himself against the plaintiff, as he lawfully might do, for the cause aforesaid; and, in so doing, did necessarily and unavoidably a little beat, wound, and ill treat the plaintiff, doing him no unnecessary damage on the occasion aforesaid. And so the defendant saith, that if any hurt or damage then happened to the plaintiff, the same was occasioned by the assault so made by said plaintiff, on him the said defendant, and in the necessary defence of himself against said plaintiff.” In this plea are involved, 1st. An admission of a battery. It is true, it may not be to the extent of the injury complained of in the declaration. 2d. That the battery was in resistance to the assault of the plaintiff, first made on him, the defendant. 3d. That the battery thus inflicted was in the.necessary defence of the defendant from said assault of the plaintiff, and was proportioned to the character of that assault. All of these matters of defence are affirmatively alleged in the plea, and I maintain, under the state of the pleadings, must be affirmatively established. The defendant assumes the onus probandi. To escape from this objection, the adverse counsel attempt to raise a technical point, as to the character of the plaintiff’s replication to that plea. The record shows, that both the plea and replication are in short. It states, the defendant pleads “ not guilty,” son assault demesne, and molliter manus imposuit, and issue in short signed by the counsel for both plaintiff and defendants. The counsel asks, what was that issue, and replies, “ that it was a denial de injuria, and not a confession of the plea, and an averment of excessive beating, which could be the only other response to that plea.” The authorities lay down the rule to be, “ that it is not necessary to new assign to the plea of son assault, &c. "Where the plaintiff alleges and proves an assault and battery, and the plea alleges matter to justify both, the defendant must prove as much of his plea as will justify both.” The issue submitted to the jury must be understood to mean an affirmance on the one side, and a denial on the other, of all the matters set up in that plea as grounds of defence. The plea itself was in short, as the issue and joinder. Still both parties seem to have understood the matter. The objection now made was not thought of on the trial in the court below. The plaintiff did introduce testimony to show excessive beating, which, according to the view of Mr. Potter, (although differing in that from the counsel on the same side below, who did not object,) was inadmissible. If the position were ever so well founded, that in such case issue in short implies a denial de injuria, and not a confession and avoidance of the plea, he cannot be heard to urge to the exclusion of evidence not objected to on the trial before the jury. So, on the other hand, counsel for plaintiffs in error, in the court below, introduced testimony to show, that at least a portion of the defendants committed no battery whatever, and this notwithstanding all of them had pleaded son assault demesne, and molliter manus imposuit. I take it, as the whole testimony has been embodied in the bill of exceptions, this court will not now consider objections to the admissibility of evidence predicated upon the mere form of the issue, which were not made in the court below. That evidence being in without objection, covers all technical objections on my side that they were estopped, one and all, from denying that they had committed a battery by the plea they had filed; and on their side, that we could not prove excessive beating, under the issue joined. The verdict and judgment cover all defects of that kind, and this court, having the whole facts before them, are to determine whether, upon those facts, the verdict is right or wrong. If it were a question this court could inquire into now, as no objection was made to the admission of the evidence of the plaintiff below, I would be glad to know upon what it is assumed that issue in short to the plea of son assault in short, “ is always understood to mean a denial, and not a confession and avoidance of the plea.” I know it is laid down in all the books on pleading, “ that where the plea is untrue, and consists merely of matter in excuse, as son assault demesne, the plaintiff should reply de injwia, which puts in issue all the allegations in the plea.” Yet it by no means follows that this court will infer that the plaintiff did not adopt this instead of the denial. Indeed, as it would have been the correct rule of practice and pleading, and as in the trial below it was recognized, as shown by the introduction of evidence proving an excessive beating, and not objected to by plaintiffs in error, we must infer that it was considered by court and counsel on both sides, as a reply de injuria. If right in this, the defendants below were bound to prove that it was plaintiff’s own assault in the first instance, and that the beating inflicted was in their own necessary defence in repelling that assault. Have they done this ? Let us briefly review the testimony. It seems from the evidence that the defendant in error visited the place where the grocery is situated, on the day the difficulty occurred, on business. There is no pretence to say that he went there from any design to engage in a difficulty. One of the witnesses swears that some two weeks previous to his going there, he stated to him he intended to go there on the very day he did go, to engage cotton for shipment on his boat. He is not shown to have had any previous difficulty, or cause of quarrel with any of the plaintiffs in error. The first difficulty occurred in the backroom of the grocery, between Tyrus Bell and the witness Thomas; Bell got mad with Thomas; Thomas started out; Bell struck him, and got him down; defendant in error pulled Bell off Thomas; Bell got up, ran out at the back door; did not see Morrison strike Bell; saw nothing in his hands; no intimacy between Morrison and Thomas; Morrison showed no disposition to get in a fight. The next witness for defendant in error, Hinkle, states that he saw Thomas run out of the house. Witness went in; saw them all on the floor in a pile; M1 Clanahan was trying to part them; had hold of William Bell; tried to pull him away. The plaintiffs in error, T. Bell, W. Bell, V. Bell, and Farmer, and Crotty were urging on the fight; V. Bell threw a bench or chair at Morrison; when Morrison got up, T. and W. and V. Bell all struck him with sticks; Dawson jumped up and hollowed “Hurrah for Bell; go it my Bell;” all the Bells, Crotty, and Farmer had sticks; Morrison went out, or was pushed out of the room ; showed no disposition to fight. The Bells, Crotty, Dawson, and Farmer followed him out of doors; witness caught hold of and reasoned with T. Bell; got him back in the room; heard hollowing in the yard, “ Kill him, kill him;” T. Bell then rushed out; as he passed out at the front door, he struck Morrison on the head, who was standing near the outer door, saying nothing; sometimes one and then another of the plaintiffs in error would strike him with sticks on the head; one of them knocked him down ; heard Farmer say “ he had given him a whopper,” with a stick held in both hands; all this time, Morrison did not attempt to fight; all the plaintiffs in error were engaged out of doors in fighting Morrison; no one assisted Morrison; witness declared he would not stand and see a man murdered; no one offered to assist him to part them; after the fight was over, T. Bell objected to any one washing Morrison’s head and face, which were dreadfully cut; said no friend of his would get water to wash the damned old rascal; after Morrison had mounted his horse to leave, T. Bell struck at him. Harris, another witness for defendant in error, saw all the Bells, and Crotty, after the difficulty with Thomas; all had sticks; T. Bell asked where was the “ damned old rascal; ” was told he was in the house; said “let us go in and kill the damned old rascal;” they all- went in; all- urged on the fight; saw Y. Bell strike Morrison with a board; T. Bell struck him with a stick; saw William Bell khock him down; first lick he saw struck was by T. Bell, on Morrison’s head; V. Bell struck him with a stone; M'Clanahan, the only man making peace. J. Wharton, another witness for defendant in error, saw Morrison come out of the house very bloody; leaned against the side of the house bleeding; T. Bell met him with a stick ; Morrison caught hold of, and took the stick from him; Morrison was then knocked down by William Bell with his fist; Morrison showed no disposition to fight. Witness proved that he, Morrison, was very badly hurt; was delirious from his wounds; was confined a week before he could travel. Witness waited on him ; dressed his wounds for four weeks; some of the cuts were to the skull-bone. Witness Haslip saw Morrison in February, near two months after the difficulty; his head still very sore, and opened some of the wounds which discharged a great quantity of matter; his head still sore in March. The evidence on the part of the plaintiffs in error contradicts some of the statements of the witnesses for the defendant in error. There is much conflict between witnesses; it was therefore a case peculiarly for the jury. ■ There are circumstances of marked atrocity on the part of the plaintiffs in error. A more brutal, murderous, and cowardly assault, I never heard or read of. There was the most conclusive proof of the participation of all the plaintiffs in error; some in beating, others in encouraging, all in preventing any one from rescuing Morrison, or in any way interfering. On the weight of evidence, there can be no possible ground of complaint with the verdict. A great many bills of exceptions to points of evidence were taken. I do not deem them of sufficient importance to call for remark. It was objected, and exceptions reserved, that Dawson should not have been prevented from testifying. The plaintiffs in error themselves, moved that he put on his trial separately, as the question only of guilt or innocence, that he might be used as a witness, if innocent, for the other. He was found guilty. They were estopped afterwards from insisting that he should be examined. There was no error committed by the court in refusing to allow him to be examined. Now, is it not idle and ridiculous to pretend, 1st, that Morrison originated the assault; that he struck the first blow ? Here was a crowd assembled, all friendly to the plaintiffs in error. A father and two sons, the Bells, Crotty, Dawson, and Farmer, all confederated. Is it probable that Morrison, under such circumstances, would have provoked a difficulty? But if all that, as proved by witnesses for defendant in error as to the origin of the assault, is untrue, so far as relates to the person who begun it,' — mow look to the actual and terrible injuries inflicted upon Morrison. Who amongst the witnesses has stated that either of the plaintiffs in error were hurt in the slightest degree ? Here are five men, all engaged in beating one man with sticks, and yet it is argued that it is simply a drunken brawl, commenced by the defendant in error; nobody seriously injured, and no case for exemplary damages, and. that a verdict of $1,200 damages is excessive. Even if Morrison had begun it, the force employed in repelling, was wholly disproportioned to the attack, both in the number of persons engaged in repelling, and the damage inflicted. If five men, all armed with bludgeons, cutting open to the skull the head of a man who‘shrank from them, fled and showed every disposition to avoid a fight, be a case falling under a plea of son assault demesne, or if this be a moUiter maims imposuit demonstration, we had better get rid, as soon as possible, of all law upon the subject. There were at least three distinct fights; different parties were sometimes engaged, but all the plaintiffs in error were concerned in one or more. There is no error in refusing the first charge of plaintiffs in error in view of the pleadings and facts. The facts very clearly proved that if he conceded that Morrison made the attack, no injury resulted from it, and under the pleadings only the force requisite to repel the attack could be justified. So that they may have all been one fight and Morrison may have commenced it, and still, if the plaintiffs inflicted upon him cruel and inhuman punishment wholly unnecessary and disproportioned to the attack, and not demanded by their own defence, still the court could not instruct them to find for the plaintiff in error. The second was properly refused on the same ground and for the same reasons. In fact the first, second, third, and fourth, were all properly refused for the reasons stated. No instructions whatever .were asked by defendant in error. If there were error, however, in any one of the charges, yet if the verdict is correct upon principle and is fully warranted and sustained by the evidence, this court will not disturb. This point has been too often decided to make it necessary to cite the eases. Where substantial justice has been done, and the verdict is supported by the weight of evidence in a case, and it is unlikely that a different result would be arrived at on a new trial, this court will not interfere, merely because of error in some charge of the lower court on an abstract question. All the charges which were refused by the court, we think, embraced points which the plaintiffs in error had estopped themselves from setting up by their pleas. The conduct of the plaintiffs in error was characterized by a brutality, cruelty, and cowardice; that of the defendant in error by a patience under the most severe personal injuries which called upon the jury for the sternest administration of the law. I think $1,200 was a small price to be made to pay for the injuries inflicted upon the defendant in error. I doubt whether the learned counsel who so earnestly insists that the damages are excessive, would feel himself compensated for having several gashes upon his head reaching to the skull, and several stalwart bullies, armed with bludgeons, belaboring him.