Byers v. Horner

Alvey, J., delivered the opinion of the Court. This is an action of trespass for an assault and battery. The defendant pleaded three pleas : 1st. That he did not commit the wrong' alleged ; and 2nd and 3rd. That the assault and battery complained of were committed in defence of his daughters. As to the second and third pleas, all questions raised thereon may be laid out of the case, as the Court below, in granting the third and fourth prayers of the plaintiff, instructed the jury that there was no sufficient evidence before them to maintain either of said pleas, and as the present appeal is taken hy the plaintiff, the question as to the propriety of granting those prayers is not presented here. Hence the fifth and sixth prayers of the plaintiff, in relation to the evidence that should not be considered under the second and third pleas, became immaterial, and were, therefore, properly rejected. All other questions, so far as the pleadings may be involved, must be considered as raised under the plea of not guilty of the wrong alleged. The plaintiff gave evidence of the trespass complained of, and the circumstances under which it was committed hy the defendantand then proposed to ask the witness (his wife) “if the defendant had not, in the years 1873, and 1874, committed several assaults upon the plaintiff, or threatened plaintiff with assaults.” This question being objected to by the defendant, the plaintiff’s counsel stated that the object of the proof was to show hostile feelings on the part of the defendant to the plaintiff at the time of the trespass, which occurred on the 30th of June, 1875. The Court sustained the defendant’s .objection, and that ruling is the subject of the plaintiff-’s first exception. [31] We think the ruling of the Court was correct. The animus of the defendant at the time of the trespass was certainly material; but the proof sought to be elicited was too remote to be reliable as evidence of the condition of defendant’s mind at the time of the trespass committed. Any acts or declarations, indicative of the existence of malice or ill-will on the part of the defendant towards the plaintiff at the time of the wrong done, and which may have prompted the act complained of, may be given in evidence to characterize the injury, and to aggravate the damages. But such proof of malice or ill-will must so nearly approximate the trespass as fairly to show the condition of the party’s mind, and his real intention, at the time of the act done. Shafer vs. Smith, 7 H. & J., 67 ; 2 Greenl. Ev., sac. 89. Here a year or two intervened between the acts or declarations proposed to be given in evidence and the trespass complained of, and, consequently, such acts and declarations, unless followed up by more recent and closely approximating evidence of malice, would furnish evidence too uncertain and inconclusive to be allowed to go to the jury for the purpose of enhancing the damages. We also approve of the ruling of the Court below as stated in the plaintiff’s second exception. The proof proffered by the defendant was clearly admissible, under general issue ; and it did not require that the defendant should avow in advance, upon demand of the plaintiff, the special purposes for which the proof was offered. The rule is well settled, that the defendant, in mitigation of damages, may give in evidence, under the general issue, a provocation by the plaintiff, provided it was so recent and immediate as to induce a presumption that the violence was committed under the immediate influence of the passion thus wrongfully excited by the plaintiff. 2 Greenl. Ev., sec. 93 ; Gaither vs. Blowers, 11 Md., 536. And for the same purpose, that is to say, to mitigate the damages, the defendant may, under the general issue, rely on any [32] part, of the res gestee, though, if pleaded, it would have amounted to a justification; and this “ notwithstanding the general rule, that, whatever is to be shown in justification must be specially pleaded; for every thing which passed at the time is part of the transaction on which the plaintiff’s action is founded, and therefore he could not be surprised by the evidence.” 2 Greenl. Ev., sec. 93; Bull., M. P., 17. Where proof is offered generally, the party offering it is not required to declare the purposes specially for which it is offered; and it would be error to reject it if admissible for any purpose under the pleadings ; but if it be offered for a special purpose only, and it be inadmissible for that purpose, it will be rejected, even though admissible for another purpose. But where evidence is offered for several purposes, as it was in this case, and it is admissible for any one of them, a general objection will not be sustained ;— such an offer being regarded as a general offer, and therefore good. In such case, if it be apprehended that the jury may be mislead by evidence thus admitted, counsel may apply to the Court for an instruction as to the purpose for which it may or may not be considered, and thus prevent the evidence from being misapplied by the jury. Pegg vs. Warford, 7 Md., 606 ; Carroll vs. Ridgaway, 8 Md., 328. Here the defendant declared several purposes for which the evidence was offered, and it being clearly admissible for at least one of the purposes mentioned, that is, in mitigation of damages, the objection by the plaintiff was properly overruled, as to that; and as to the other purpose mentioned, the evidence admitted under the proffer became immaterial by the subsequent rulings and instruction of the Court. The plaintiff’s third and fourth exceptions were taken to the admission in evidence of certain declarations of the plaintiff’s wife, in disparagement of the defendant, and which were made to the latter immediately after the [33] assault and battery committed. As declarations of a third party, made after the trespass committed, they were clearly inadmissible to reflect either upon the conduct of the plaintiff or that of the defendant. They in no manner tended to prove justification of the defendant’s act, and could not in any manner mitigate the injury inflicted on the plaintiff. But they were admissible for one purpose, and that alone, and that was to show the feelings and prejudices under which the plaintiff’s wife may have testified as a witness, — she having been cross-examined as to such declarations. The evidence was offered generally, and it was met by a general objection, and was sought to be excluded as inadmissible for any purpose. This general objection the Court was justified in overruling; but in doing so it would have been well to have defined the purpose for which the evidence was admissible. The ruling of the Court below as contained in the plaintiff’s fifth exception, we think was entirely correct. The motion of the plaintiff was to have all the evidence offered by the defendant, showing the circumstances immediately preceding, and which led to the assault and battery complained of, stricken out and rejected, upon the alleged ground that there was no sufficient proof to connect the preceding occurrences with the trespass sued for. The Court was clearly right in refusing this application, upon the principles we have stated in passing upon the second exception. In rejecting the plaintiff’s second prayer we think the Court below was in error. It is true the prayer might have been framed in a way to free it more clearly of the special objection taken to it; but as we read the prayer, it would seem to be based upon and have reference to all the circumstances attending the assault and battery, and it left the jury free to consider all the circumstances of the case ; for, by its express terms, it proposed that the jury should be instructed that they were at liberty to find, not [34] that they should find,, such exemplary damages as the circumstances of the case might in their judgment require. Having in a previous prayer referred to enumerated a state of facts which, if found by the jury, entitled the plaintiff to recover, according to the opinion of the Court, the second prayer should have been granted in connection with the first, and as a dependent proposition. (Decided 14th June, 1877.) There can be no doubt of the correctness of the legal proposition embodied in the prayer. The jury are not confined to the mere corporal injury which the plaintiff may have sustained. They are at liberty to consider the malice of the defendant, the insulting character of his conduct, the station in life of the several parties, and all the circumstances of the outrage, and thereupon to award such exemplary damages as the circumstances may in their judgment require. 2 Greenl. Ev., sec. 89. This was what the prayer proposed, and nothing more. The fifth, sixth and eighth prayers of the plaintiff, which were refused by the Court helow, are disposed of in what we have already said in a previous part of this opinion ; and the tenth prayer we think was properly refused, for reasons heretofore stated. It sought to. withdraw from the'consideration of the jury all circumstances which had been admitted for the purpose of mitigating the damages. Whether the defendant acted in the bona fide belief that the plaintiff had assaulted his, the defendant’s daughter, or whether he affected so to believe and made it a pretext and a mere occasion for the assault upon the plaintiff, were questions for the jury to decide from all the evidence before them. And as to the third and fifth prayers of the defendant, we think, upon the principles aiready stated, they were properly granted. But because of the error in refusing to grant the plaintiff’s second prayer, the judgment appealed from must he reversed, and a new trial ordered. Judgment reversed, and a new trial awarded.