Nadenbousch v. Sharer

Maxwell, J. We are advised that the matters in dispute in this case have been settled between the parties since the supersedeas was allowed, but the parties being unable to agree in respect to the costs of the proceedings in this court, they have imposed on us the trouble of looking into the whole case, and of determining all the questions in it, merely to get at the question of costs. The first ground of error assigned is, that the court erred in its judgment in sustaining the demurrers to the pleas filed. These pleas did not aver sufficient grounds of defence, as has been repeatedly decided by this court, so that the demurrers to them were properly sustained. The second ground of error assigned is, that the court erred in refusing to grant a new trial, because the verdict of the jury was not sustained by the evidence. This objection is not well taken,because the evidence was sufficient to warrant the verdict. The third ground assigned as error is, that the verdict is excessive. The damages found by the verdict seem high, hut as the circuit court, with all the evidence fresh before it, refused to set the verdict aside, it does not seem to be a case in which this court should interfere. Another ground of error assigned is, that an incompetent and improper juror was allowed to be empaneled in the case. There is some evidence in the record going to show that the juror objected to behaved badly, in another casé tried at the same term of the court, but there is nothing in the record tending to show that he had made up or expressed any opinion in respect to this case, or that he was in any manner so connected with any of the parties as to render it improper for him to sit in the trial of it. Still another ground of error assigned, is the refusal of the court to grant a new trial on account of the discovery of important evidence after the trial. [207] There is nothing in the record which shows that the newly discovered evidence might not have been discovered before the trial by the use of diligence, nor does it appear that the evidence, if produced on the trial, would have gone to the merits of the controversy, but only to mitigate the damages. There does not seem to be any error for which the judgment complained of ought to be reversed, and the same must be affirmed, with costs to the defendant in error. Brown, President. This case presents a question which heretofore has not been, so far as I am aware, presented in any other case before this court. It is, that the plaintiff, a rebel soldier, in the rebel service, and under the command of the defendant as his superior officer, in the late rebellion, afterwards deserted, and was subsequently, during the war, arrested by the defendant, under the orders of the confederate government, as such deserter, which was the trespass complained of. The cases heretofore before this court have been actions by loyal and peaceful citizens against parties who were rebels, and who sought to justify the trespass, whether to person or property, under the defence of belligerent rights, as it is commonly called. Nor has any case, yet occurred before this court where the trespass complained of was committed on a Union soldier in the service, by a rebel soldier as an act of war. The question, therefore, comes squarely up for determination in this case, whether the principles settled in the preceding cases alike determine this; in other words, whether a rebel in arms may sue and recover against his fellow rebel in arms, in the courts of the government sought to be overthrown, for an arrest and restraint for desertion, and which arrest and restraint were by the rebel military authority, and in aid of the rebellion. The act of desertion was a -prima fade withdrawal from the unlawful combination, and the arrest and restraint, for [208] it cannot be said to implicate him in the illegal aiding tbe rebel cause, in so far as it, the arrest, tended to that end. The injury the plaintiff sustained was inflicted without lawful authority, and since he was free from implication in the illegal act, no good reason is perceived why he shall not recover for it, after his relation to the courts and the country rebelled against has been so far restored as to enable him to enter them and be there entertained as a suitor. This case differs from any heretofore decided by this court in another particular. In the case of Hood vs. Maxwell, 1 W. Va. Rep., 219, the trespass was in the taking the goods of a private citizen by the defendant, as military quartermaster, under the orders of a military officer acting in hostility. to the United States. In this case the trespass was in the arresting and imprisonment of the plaintiff for leaving his military company, which company was lawful in its organization, but had, at the time of his leaving it, become incorporated into the hostile military force, assembled, as alleged, by the order.of Governor Letcher, at Harper’s Ferry, on the 17th of April, 1861, to resist the authority of the United States, within the State of Virginia. The. same effort at justification is made, and under the same unlawful authority, and, I think, the same principles must determine this case that determined that, and in the same way, andaré as applicable to injuries to the pei’son as to property. Upon the question of excessive damages, it may be remarked that, it must be a strong case to set aside a verdict for that cause, because it is the peculiar province of the jury to ascertain the amount of damages, and they are better able to judge of the circumstances of the case and the weight of testimony, and the credibility of witnesses, and the peculiar hardships aud aggravations attendant upon the injury no less to the person than to the feelings, and the reproach, humiliation, and disgrace, into which the injured party may be brought by the imprisonment as a felon and traitor, though to the cause of rebellion. Surely that cause, which was upheld, in part, by resort to [209] to such means, cannot commit itself to the courts of the State sought to be subjugated, as a mitigating cause in a case like this. If it were a simple question of imprisonment for six months, the verdict of 2,000 dollars might be high, perhaps excessive. But when that imprisonment is accompanied with the odium and indignities, the hardships and ill-treatment, apparent from the evidence, it seems to me, there are but few persons who could voluntarily undergo it for that amount. I am unable, therefore, to perceive any ground for disturbing the verdict for that cause. With these views, I concur in the opinion just delivered in the cause. Judgment aeeirmed.