Bell v. Morrison

27 Miss. 68

• Court: Mississippi Supreme Court
• Decided: April 15, 1854
• Status: Published

Opinions

Mr. Justice Handy

delivered the opinion of the court.

This was an action for an assault and battery, brought by the defendant in error against the plaintiffs in error in the eircuit court of Noxubee county. The defendants below pleaded three pleas in short by consent. 1st. Not guilty. 2d. Molliter manus imposuil. 3d. Son assault demesne, upon which the plaintiff took “ issue in short by consent.”

The testimony in the record is prolix, and the particulars of the difficulty between the parties are stated at length, and not without contradictions in many respects between the witnesses. It is only necessary, in considering the case as presented for our determination, to speak in general terms of the facts appearing by the record.

It appears that the plaintiff below, who resided in Winston county, went to a grocery shop in Noxubee county, on Christmas day, 1847, where he met with the defendant, Tyrus Bell, and one Thomas, and the parties indulged in drinking ardent spirits. A misunderstanding occurred between Bell and one Thomas, and a fight between them ensued,’in which Bell got Thomas down and was upon him, and that Morrison pulled him off. Thomas left the place, which was the backroom of the house, and shortly afterwards a fight was commenced between Bell and Morrison, without the latter’s seeking. They were separated, and, in a short time, Bell, with the defendants William Bell, Vincent Bell, Dawson, Farmer, and Grotty, renewed the difficulty with Morrison in the backroom of the place, which was continued in other parts of the premises at short intervals, during which he was severely beaten, the defendants being friends of each other, and he being a stranger in the place. It was shown that the defendants were armed with sticks, with which the plaintiff received several blows and severe wounds on the head, that he was knocked down with a stone by one of them, that he was delirious, in consequence of the wounds he received on his head, for a week, and confined so as to be unable to return to his home, and was unable to do his work for several weeks, and that his wounds were not healed in March following ; that he was alone and unaided by any one, except persons who interfered only to prevent further violence to him; that several of the defendants struck him, the others encouraging it, he doing nothing to provoke it. In some of these particulars the testimony is conflicting, but the evidence tends to establish' them, and it is clear that the blows inflicted upon him were without sufficient justification, and the violence great and cruel.

On the final trial, a verdict and judgment were rendered for the plaintiff for if1,200 damages; the defendants moved for a new trial, which was refused, and thereupon this writ of error was sued out.

During the progress of the cause, several bills of exception were taken to the action of the court, presenting points of error, which we will proceed to examine.

First. It appears that on a trial of the case which took place at December term, 1849, which was not the final trial, after all the evidence on both sides had been adduced, the defendants moved the court that the jury should retire and ascertain whether, upon the evidence, they should not acquit the defendant Dawson, in order that he might be admitted as a witness for his codefendants. The motion was granted, and the jury returned a verdict of guilty against the defendant Dawson, but assessed no damages; and thereupon the court ruled that he should not be discharged, but should be put upon his trial with his codefendants. The trial was then proceeded with against all the defendants, except Vincent Bell, as to whom the plaintiff dismissed the suit, and the case was argued and submitted to the jury, who, being unable to agree, were discharged by consent of parties, and a new trial awarded. When the case came on for final trial at December term, 1850, the plaintiff moved to strike out a plea filed at that term by the defendants, Tyrus and William Bell, Farmer, and Crotty, setting up the proceeding as to the defendant Dawson above stated, as a judgment against him, and relying upon it as a bar to a recovery against the other defendants. This motion was sustained, and the defendants excepted, which constitutes the first bill of exceptions.

It”is insisted in behalf of the plaintiffs in error, that the proceeding at December term, 1849, amounted to a judgment of recovery against Dawson, which operated as a discharge of the other defendants. We do not consider the proceeding as a judgment against Dawson. It was manifestly but an inquiry as to whether he should not be discharged in order .that he might testify for his codefendants. It was taken at the instance of the defendants, and for their benefit, no part of the object being to render a judgment in behalf of the plaintiff for any amount. The mode of proceeding adopted by the court to render the defendant a competent witness was irregular and improper. If there had been no evidence at all tending to inculpate the defendant Dawson, it would have been competent for the court to direct the jury to acquit him in order that he might be admitted to testify. 1 Greenl. Evid. § 358. In such case, the direction is peremptory, and the verdict is rendered accordingly, as a matter of course. But when there is any evidence tending to charge the defendant, such a direction could not properly be given, much less in a case of doubtful evidence, should the jury be directed to retire and determine whether or not a case of liability was proved to their satisfaction against a particular defendant, in order that he might be discharged and rendered competent as a witness for his codefendants. But although such a proceeding was irregular, the defendants are not to be permitted to complain of it, because it was done .at their own instance, and in nowise for the benefit of the plaintiff. Nor will they be permitted to give to it a greater effect than ■was intended at the time, which was simply that of an inquiry, whether the defendant was guilty or not, with a view to his competency as a witness.

It was not improper, therefore, to strike out this plea. Secondly. These defendants then offered Dawson as a witness in their behalf. The plaintiff objected, and the court sustained the objection. For the reasons above stated, we think there was no error in this. For all the substantial purposes of the suit, Dawson was still a party defendant to be proceeded against for the recovery of damages against him and his codefendants. He was, therefore, clearly incompetent as a witness for the defendants.

The third and fourth bills of exception present objections to certain testimony admitted on the part of the plaintiff. This testimony was, that immediately after the difficulties had ceased, the witness and another person were about to get water to wash the blood from the plaintiff’s face, when the defendant, Tyrus Bell, prevailed upon them not to do so, using abusive language towards the plaintiff, and that as the plaintiff was about to quit the place, Tyrus Bell struck at him on his mule.

The defendants were sought to be charged as participators in the trespass against the plaintiff, and the evidence tended to show a combination between them to commit the injuries complained of. The acts and declarations of one of the parties, during the continuance of the affair, and before the parties had entirely separated, showing circumstances of aggravation, were admissible in evidence against all the parties implicated. 1 Greenl. Evid. § 111. The conduct of Bell, in this particular, was exhibited before the difficulties had entirely ceased, and while the revengeful feelings of the defendants were still aroused, and it was, therefore, competent to the plaintiff to show it as part of the res gestee.

The fifth bill of exceptions is taken to the admission of evidence, on the part of the plaintiff, showing the quantity and value of the property owned by Tyrus Bell.

This evidence could have been introduced for no other purpose than to justify the jury in increasing the damages that might be awarded to the plaintiff. The plaintiffs in error insist that the wealth of the defendant furnished no proper criterion for assessing the damages caused by the injury to the plaintiff; and further, that evidence upon that point was improperly admitted, as to the other defendants who were affected by the damages assessed.

It is settled by authorities almost without exception, in England and in the United States, that in actions for injuries to the person or to the character, the jury are not restricted, in giving damages, to the actual, positive injury sustained by the plaintiff, but may give damages as a punishment against the defendant; that not only may the plaintiff receive compensation for the injury inflicted upon him, but that the interest of society may be regarded, and such damages may be awarded as will tend to operate by way of example, and to deter others from similar acts of violence and oppression. See Sedgwick on Damages; 39 et seq., and cases there cited.

If this rule, which is sanctioned by so many high authorities-; be just and salutary, it can only be properly and effectively applied by taking into consideration all the circumstances, whether of aggravation or mitigation of the grievance complained of, the situation of the parties as to wealth, character, and influence, and awarding such damages, in view of all these circumstances, as will both render reparation to the plaintiff, and act as an adequate punishment to the defendant. The damages which would operate as a proper punishment to one man might be inadequate to that effect upon another, by reason of their difference in pecuniary condition; and on the contrary, a verdict that would be scarcely regarded by a wealthy man, might be ruinous to a poor man. Hence the necessity, if the principle of exemplary damages be sound, to inquire into the pecuniary condition and circumstances of the defendant, in order, if the jury consider the case worthy of being made an example of, that the verdict may at once be adequate to the injury done to the plaintiff and to society, and just and reasonable to the defendant.

The action was for the joint tort of the defendants, who joined in their pleas. • In such a case, it is hqld to be proper for the jury to assess damages against all the defendants jointly, according to the amount which, in their judgment, the most culpable of them ought to pay. 2 Greenl. Évid. § 277. Whatever, therefore, would be competent evidence with that view as to one, would be competent as to all of the defendants. Otherwise a wealthy defendant, who was principally implicated in a 'wrong of this character, might escape the payment of just and reasonable damages, by having others, without character or property, associated in the unlawful act. We therefore think that this evidence was properly submitted to the jury.

The sixth bill of exceptions is taken to the admission of evidence of declarations made by the plaintiff, just before he went to the place where the difficulty occurred, that his purpose in going there was to get cotton to ship on his flat-boat. This evidence was offered to show the absence of all improper motives on the part of the plaintiff, that he was in the pursuit of his lawful business, and that the scenes which occurred there were unpremeditated by him. The declarations were made previous to the occurrences of that day, and when they could not have been made in reference to them; for there can be no pretence, for aught that appears, that he anticipated the difficulty. Under such circumstances, his previous declarations, as to his object in going there, were clearly competent evidence. 1 Greenl. Evid. § 108.

The seventh bill of exceptions is founded on the instructions asked by the defendants, and refused by the court. The first is, “ if the jury believe from the testimony that the fights proven were a continuation of the first fight, and that they were all the same fight, and that Morrison commenced the first fight, they will find for the defendants.”

The second is the same in substance, except that it directs the acquittal of Tyrus Bell, if the facts are found as stated in the first instruction.

The third is, “ if the jury believe from the testimony, that the fights proven were separate and distinct fights, and that Morrison commenced the first fisrht with Tyrus Bell, they will acquit Tyrus Bell.”

The fourth is, “ if the jury believe from the testimony, that the fights proven were separate and distinct fights, and that there were some of the fights that any one of the defendants did not take a part in, and fought in self-defence, they will find in favor of such defendant.”

The two first instructions are upon the hypothesis that Morrison commenced the first fight, and that the others were but a continuation of it, with periods of intermission. Under the simple issue of not guilty, the defendants would have been liable, if the beating had been excessive and cruel, and not in self-defence. But the defendants pleaded son assault demesne, upon which the general issue was taken, which must be understood to mean the general replication de injuria, &c.; also the plea of molliter mams imposuit, on which issue was taken. If the beating by the defendants was excessive, beyond what was apparently necessary for their defence against the plaintiff’s assaults, evidence upon that point was properly admitted, under these issues, and should have been considered by the jury. 2 Greenl. Evid. § 95, and cases cited. But though the evidence showed that the beating was excessive, or even cruel and unmerciful, yet, under these instructions, the jury would not have been permitted to consider it, if the plaintiff commenced the first fight, and the defendants kept up the difficulty, however unjustifiably, but they would have been compelled to find for the defendants. Such is not a correct view of the law, and these instructions were therefore properly refused.

The same reason justifies the refusal of the third instruction. But it is altogether unsound as a legal proposition. It, in effect, ••announces the barbarian rule, that if Morrison commenced the first fight, the defendant Bell was thereby justified in attacking him again at pleasure, in separate and distinct fights from the first, and in using violent and cruel punishment at discretion. Such a principle could never receive the sanction of a court of justice.

The fourth instruction is obscurely expressed. We presume ■it was intended to state, that if the fights were separate and .distinct, and there were some of them that any .one of the defendants did not take part in, except in self-defence, the verdict .should be for such defendant. If this be not its sense, it is difficult to interpret it, and its obscurity was a sufficient reason .for refusing it. But if this be its meaning, it was properly refused, because, according to the rule declared in it, if there were some of the fights in which any one of the defendants did not take part, except in self-defence, such defendant should have been acquitted, though he was wrongfully engaged in ■another of the fights, and beat the plaintiff therein without justification or excuse.

The last ground of error assigned is, that the damages were excessive.

In cases of this character, the matter- of damages rests almost unrestrictedly with the jury. The rule upon the subject is well stated by Judge Washington in Walker v. Smith, 1 Wash. C. C. R. 152, to be, that “ the jury act without control on the subject of damages, because there is no legal rule by which they can be measured; and unless they are so extravagant as to induce a suspicion of improper conduct, the court will not interfere.”

In this case the violence was great, and the injuries severe to the plaintiff. The testimony as to the circumstances of justification or mitigation, was conflicting. It was for the jury exclusively to judge of the credit of the witnesses, and the weight of their testimony. If they gave full credit to the witnesses in behalf of the plaintiff, as it must be presumed they did, we cannot invade their province, and say, that they acted improperly, without evidence casting suspicion on their conduct. The veracity of the witnesses being thus settled, we think their testimony justified the damages awarded, and that the motion for a new trial on that ground was properly denied.

We are, therefore, of opinion that the judgment should be affirmed.