Lewis v. Fleer

Opinion by Orlady, J., The plaintiff was shot in the hip while he was trespassing on [242] the property of the defendant, whose denial of causing the injury was as positive as it could be made, not only "that he did not shoot at the plaintiff, but that he was not at his home when the shooting occurred. On the other hand, the plaintiff, and a friend who was with him at the time, testified just as directly and positively that the defendant shot at them twice while they were going away from him, and was but forty rods distant from them at that time. The occurrence happened in clear daylight, and the defendant was directly identified by these two witnesses. We have nothing to do with their credibility, and must accept the verdict of the jury as establishing their version of the transaction. The plaintiff requested the court to say to the jury: “if the jury finds that the shooting in this case was wanton or vindictive, or malicious or cruel, then the verdict should be for such a sum as should be a proper punishment for the unlawful act,” which was affirmed. The other assignments of error relate to detached parts of the charge of the court. The boys were trespassing upon the defendant’s property, and, as on former occasions, had been taking apples. While they were defiantly violating the law, the legislature in its wisdom has enacted statutes which specifically measure the punishment for such conduct. Under such acts the landowner cannot determine the manner, character nor degree of the penalty to be imposed. The testimony adduced by the plaintiff was sufficient to warrant the verdict and it has met the approval of the court below in its refusal to grant a new trial. The charge taken as a whole was a fair presentation of the case. The unexplained absence of the defendant’s wife would naturally be noticed by the jury, inasmuch as it was upon her recollection of his presence at Sea Isle City on the day the shooting occurred, that recalled to him the special fact that he was not at home at that time. But the court was clearly within well defined bounds in saying: “ if he did have evidence beside his own that would contradict it, it was very important that they be here. And while there is no presumption against him on that account, yet it is a principle of law, where one has within himself the power to produce evidence of a particular fact in his favor, the jury may infer that if it was produced it would be unfavorable to him. That is as far as it goes. There is no [243] presumption against Rim on that account.” Nor was the defendant’s testimony belittled by saying: “ Mr. Fleer virtually says that he did not do it.” While the defendant denied that he fired the shot, and that he did not own any weapon that would shoot a bullet such as was taken from the plaintiff’s body, it was also urged as a substantive fact that he was not at home at the time but at Sea Isle City with his family. Taken in connection with the context, it must have been understood •by the jury in the same sense in which it was used by the trial judge, as synonomous with, in effect, practically, and to all intents and purposes, so that it could not mislead a juryman of average intelligence. The facts were presented without any intimation of the impression or effect they made on the court, and its general effect was to submit the disputed facts under all the evidence to the jury. In regard to the charge of the court in defining the measure of damages, it must be kept in mind that the first and vital question was, — did the defendant fire the gun as testified to by the plaintiff and the other eyewitness ? This fact found against the defendant, his other testimony would naturally be ignored, and the jury would then be dealing with the facts as thus found; a man deliberately going into his house to secure a deadly weapon, and when within a killing distance, shoots twice diréctly at the body of an unarmed boy who was going away from him. Under such facts, the rule laid down by the court was amply justified by many authorities, as indicating such wanton recklessness, vindictiveness, and willful cruelty as would justify the jury in assessing punitive damages. It was the duty of the court to explain the kind of damages the plaintiff was entitled to recover, if any; and for the jury to ascertain the facts to which the instructions should be applied: Hawes v. O’Reilly, 126 Pa. 440; Greeney v. Penna. Water Co., 29 Pa. Superior Ct. 136. None of the assignments of error is sustained and the judgment is affirmed.