Taylor v. Clendening

By the Court, Baxley, J. This cause, which comes up on error from Bourbon county, was an action by defendant in .error, against plaintiff in error, to recover damages for an assault and battery, by shooting, to which the defendant below, now plaintiff in error, answered that the plain [532] tiff below, now defendant in error, made the first as • sault, and shot first; and that the shooting of which plaintiff complained, was done in self-defense. The plaintiff replied, denying that he made the first assault, and the cause was tried by a jury, with much contradictory evidence, and some attempts at impeaching witnesses; and a verdict was given for the plaintiff below, for the sum of thirty-five dollars and costs. The plaintiff in error complains that the court below erred in refusing to allow the amendment proposed to his answer. The original answer admitted the assault, but excused or justified by alleging that plaintiff made the first assault. • On the trial, the defendant proposed to amend by adding to the answer, at the end thereof, the following: “And saving and excepting as aforesaid, the defendant denies each and every allegation, matter and thing in the plaintiff’s petition averred,” but made no showing why he should have leave to amend. The granting or refusing leave to amend, is a matter within the sound discretion of the court which tries the cause, and, except in a case where such discretion was manifestly abused, this court can never interpose. Such abuse of discretion is not manifest in this case. Another alleged error was in the court below refusing to permit the defendant to prove the. common reputation, general character and general reputation of the witness, Clendening (the plaintiff), and restricting the witness as to character — to tlie character for truth and veracity. We think the ruling of the court below was correct on this point, and supported by an immense preponderance of authority. But, in the instructions; to the jury, there was, we [533] think, manifest error. The second instruction was that, “the averment in the petition, that the plaintiff was compelled to pay one hundred dollars for medical attendance, not being denied in the answer, is admitted as true, and if the jury should find for the plaintiff .at all, they must assess his damages at not less than one hundred dollars,” was certainly wrong, since the same section of the code (§ 137) which lays down the rule that “allegations in the petition, not controverted by the answer, shall be taken as true,” also declares that “allegations of value, or of amount of damages-, shall not be considered as true, by failure to controvert them.” And besides this, the plaintiff himself had proved that his disbursement and liabilities for medical attendance did not amount to one-half of a hundred dollars. Still, as the jury must have disregarded this instruction of the.court, since they assessed the plaintiff’s damages at barely thirty-five dollars in all, we cannot see that the plaintiff in error is aggrieved or injured by this error of the court. But the third instruction must also.be deemed erroneous, and we cannot say that it was harmless. It was given in these words, at the request of the plaintiff below: “If the jury should find, from the evidence, that the plaintiff committed' the first' assault, yet, if they should believe that the defendant (plaintiff in error) had used more force than was necessary to defend himself, and in so doing had shot the plaintiff when it was not necessary for him so to do, and when it would not, to a reasonable man, have* appeared necessary for him to do so to save himself from being harmed by plaintiff, then they must find for the plaintiff.” This instruction might have been very nearly [534] correct, had the State, instead of the original assailant, been the prosecuting party. But in this case it was not the State seeking to punish the disturber of her peace, and thus vindicate her offended laws ; but the plaintiff sues for damages as compensation for injuries suffered in an affray in which firearms were used by one party, and perhaps by both. The two principals in the conflict with firearms are placed upon the witness stand, and swear against each other, as earnestly as they fought. And each is supported and corroborated in his statements by the testimony of one or more of his children. The testimony is conflicting; and it is difficult for us to avoid the conclusion that one or the other of the principals swore falsely, and knew that he did so. On one side it is claimed that the plaintiff was attacked without cause or provocation, and shot in the left breast, with a revolver. On the other side it is asserted that the plaintiff himself made the first assault, and fired the first shot. Now, it seems to us that if the plaintiff was, in truth, an aggressor, and made the attack upon the defendant as alleged, with deadly weapons, and in pursuance of previous threats to kill the defendant; and if, under those circumstances, the defendant had, in self-defense, discharged his revolver at his assailant once or twice more than was necessary, it would not be for the plaintiff, who had made the assault, and had met with a repulse, to transfer his cause from the field to the forum, and recover damages of his intended victim for making a too vigorous and successful defense. Yet this seems to us to be the effect of the instruction in question. It assumes that the plaintiff was the assailant, and [535] then instructs, in a certain contingency, to mulct the defendant in damages for his benefit; We do not think the law could furnish a healing-plaster for Ms wounds in the case supposed. In that case he was the original transgressor. The law had been outraged, - but he had not. The unnecessary force and violence was an injury to the public- peace, for which -the defendant might be called to answer to the public,. but not to him. He cannot undertake to wreak a lawful vengeance upon his antagonist — -pistol in hand— and, defeated, sue him for damages to the person, upon the basis .of the instructions. He must run his own risk. Nor would it be an easy matter for the party, attacked in the manner narrated in the testimony of the defendant, to act with all the deliberation the instruction would seem to require. In the heat of blood, he could hardly be expected to weigh his words or to measure or count his blows or shots very carefully. “All that a man has will he give for- his life,” and a man thus attacked must be allowed some latitude in defense of his life. Judgment reversed. Cause remandedfor a newtrial. All the justices concuning.