Lobdell v. Geib

By the Court. Berry, J. Plaintiff complains that on or . about April 19th and 29th, May 1st, 5th and 30th,' 1870, defendant Mary Geib, wife of the defendant Casimer Geib, broke and entered a room and office in plaintiff’s possession and occupation, and there committed divers trespasses, of a grossly insulting and offensive character. Defendant Casimer Geib was called as a' witness for the defence, and was asked by his counsel the following questions : “ From April 19th to May 30th, 1870, what was the character of Mr. Lobdell’s conduct towards you during the transactions referred to in the complaint 1 How many suits has Mr. [107] Lobdell brought against you V’ Both questions were excluded upon plaintiff’s objection. Defendants’ counsel then “ offered to prove by the witness, and others, that during the whole, or nearly the whole of Lobdell’s possession of the premises, he purposely pursued a course, and committed acts of aggression towards Geib, purposely intended, and well calculated to irritate and excite Geib to breaches of' peace and law,” but the offer was rejected by the court. The only claim made by defendants’ counsel is that the proposed evidence was admissible in mitigation of damages. The defendants being husband and wife, the argument is that provocation of the former, may be provocation of the latter, and that, therefore, evidence of' the plaintiff’s said acts and conduct towards the husband, was receivable as tending to show that the plaintiff provoked the wife to commit the trespasses complained of, or in the language of Lord Abinger in Frasee vs. Berkely, (7 Car. & P. 621,) that the plaintiff in some degree brought the wrongs and injuries complained of upon himself. But passing all the other objections urged by plaintiff’s counsel, it is clear that the acts and conduct referred to could not possibly operate as any provocation to the wife, unless the same came to her knowledge in some way. And as there was no evidence, or offer of evidence to show such knowledge on the part of Mary Geib, in this case, the rulings of the court below were for that reason (without reference to other reasons) entirely proper. Order denying new trial affirmed. .