Thrall v. Knapp

Dill on, J. 1. Assault TBK?:Bpro’-vocation. Both assignments of error raise the same general question, viz., as to the nature of evidence which may received for the purpose of mitigating the plaintiff’s damages, in a civil action, for assault an(j The ru¡es 0f iaw on this subject are well settled, and the only difficulty consists in their proper application to individual cases. Thus, the law always, and most properly, admits in evidence all of the circumstances which immediately accompany and give character to the transaction. Therefore, immediate provocations, i. e., such as happen at the time of the assault, or so recently before it as to induce the presumption that the violence was committed under the [471] immediate aud continuing influence of the passion' thus wrongfully excited, are received not to defeat, hut to reduce the amount of the plaintiff’s recovery. But if the defendant’s assault was committed after time for reflection and coolness, and in revenge, he is an original trespasser, and insulting words will not, in such a case, amount even to an extenuation. These general principles are well and clearly stated in Ireland v. Elliott, 5 Iowa, 478, and their correctness is not questioned in the full and ingenious argument of the appellant’s counsel. The clear distinction is this, contemporaneous provocations of words or acts are admissible, but previous provocations are not. And the test is, whether “the blood has had time to cool.” Cushman v. Waddell, 1 Bald. C. C. R., 57; Fullerton v. Warrick, 3 Blackf., 219; Avery v. Ray, 1 Mass., 12; Ireland v. Elliott, supra; Lee v. Woolsey, 19 Johns., 319. Applying these principles to the facts in the case at bar, it seems clear that the action of the court below in rejecting evidence of the plaintiff’s slanderous words concerning the defendant’s daughters was correct. The bill of exceptions shows that this was not the occasion or cause of the assault. It does not appear ever to have been alluded to at the time of the assault. If the defendant, upon receiving intelligence that the plaintiff had publicly defamed his daughters, had immediately proceeded to the plaintiff, and, while laboring under the incitement and provocation thus superinduced, had assaulted him, the evidence would unquestionably have been proper. But such are not the facts. This case is very similar .to the early and leading American case on this subject of Avery v. Ray (a. d. 1804), 1 Mass., 12, where the defendant offered to prove in mitigation that the plaintiff had caused a most scandalous report to be circulated about defendant’s sister; that plaintiff refused to acknowledge or deny the charge, whereupon defendant informed him that [472] Re -would chastise him, which he afterward did. At the time of the battery, nothing was said about the slanderous charges. The court unanimously rejected the evidence, Sedgwick, J., observing, “ that he should be in favor of admitting evidence of provocation in mitigation of damages on a liberal scale; but to admit such evidence, when the blood has had time to cool, would be extending the rule so as to render it impossible to say where the court should stop.” We refer to this case because of its applicability, and because it has often been expressly recognized and followed. Malthews v. Terry, 10 Conn., 455; Fullerton v. Warrick, 3 Blackf., 219; Lee v. Woolsey, 19 Johns., 319; Anderson v. Johnson, 3 Har. & J., 162. These rules are founded upon a sound and enlightened public policy, which discountenances the entertaining of revengeful feelings, breaches of the public peace, and the taking by individuals of the law into their own hands and administering a species of rude, dangerous and barbarous justice by force and violence. The law affords a redress for every injury. If the plaintiff slandered defendant’s daughters, it would entirely accord with his natural feelings to chastise him; but the policy of the law is against his right to do so, especially after time for reflection. It affords a peaceful remedy. On the other hand, the law so completely disfavors violence, and so jealously guards alike individual rights and the public peace that “if a man gives another a cuff on the ear, though it cost him nothing, no, not so much as a little diachylon, yet he shall have his action.” Per Lord Holt, 2 Ld. Raym., 955. Nor was there any error in the action of the court in refusing to allow the defendant to show the numbers who attended the mass meeting, and that the plaintiff knew his statements were false. The court allowed all that the parties said about it at the time of the assault to be shown to the jury. It was proved to the jury that the defendant, at [473] the time of the assault, claimed that plaintiff’s statements •were false. If the court had allowed defendant to give evidence of the numbers who attended the meeting, and the plaintiff’s knowledge thereof, the plaintiff would certainly he entitled to produce counter evidence on the same subject, “ and thus,” in the language of Chief Justice Spencer, in Lee v. Woolsey, supra, in which this precise point arose, “ an inquiry wholly different from the one on record would be gone into, diverting and distracting the attention of the jury.” Lee v. Woolsey, 19 Johns., 321. See, also, on this point, Avery v. Ray, supra; Anderson v. Johnson, 3 H. & J., 162; and the cases last above cited. Affirmed.