Sloan v. Edwards

61 Md. 89, 1883 Md. LEXIS 74

• Court: Court of Appeals of Maryland
• Decided: December 20, 1883
• Status: Published

Opinion

Alvey, C. J.,

delivered the opinion of the Court.

This is an action of trespass for an assault and battery, alleged to have been committed by the defendant upon the plaintiff. The case was tried upon the general issue plea of not guilty. The declaration charges, that the defendant assaulted, and then and there beat, bruised, wounded, and ill treated the plaintiff, insomuch that his life was thereby greatly despaired of, and other wrongs did, to the great damage, &c.

At the trial several bills of exception were taken by the defendant to the rulings of the Court on questions as to the admissibility of evidence, and one to the granting of prayers on behalf of the plaintiff, and to the refusal of prayers on the part of the defendant. These exceptions present the questions to be decided on this appeal.

1. The first exception as to the admissibility of evidence, and the ninth, tenth and eleventh prayers offered by the defendant, and which were rejected by the Court, present substantially the same question; and that question is, whether, under the declaration in this case, it was competent to the plaintiff to give in evidence, and for the jury to consider, the fact that, as a result of the battery alleged, the plaintiff had become subject to convulsions or fits ?

It is contended by the defendant that, in order to make such evidence admissible, the fact ought to have been specially alleged in the declaration as ground of special damage. But we are not of that opinion.

It is a well settled principle that the damages recoverable in actions for personal injuries must be the natural and proximate consequence of the act complained of Therefore, whatever injurious consequences result naturally from the-wrongful act done, become elements of damage, and it is not necessary that the particular form or nature of the results should have been contemplated or foreseen by the wrong-doer. It is said, on what would appear to be ample authority, that the natural results of a wrongful act are understood to include all damage to the plaintiff of which such act was the efficient cause, though, in point of time the damage did not occur until some time after the act done. 2 Greenl. Ev., sec. 268 a. Whenever, therefore, a wrongful act is charged, the plaintiff is at liberty to give evidence of all the natural results or consequences of the act, though, as it may be, such results or consequences were not developed or made apparent until some time after the act done. And it has been held by this Court, that the general rule is, that it is not necessary to state specially any matters which are the legal and natural consequences of the battery; nor are the jury confined to the mere corporal injury which the plaintiff has sustained. Gaither vs. Blowers, 11 Md., 552; 2 Greenl. Ev., sec. 89. In the case of Tyson vs. Booth, 100 Mass., 258, it was held, that the plaintiff might show specific direct effects of the wrongful act complained of, without specially alleging them in the declaration. That was an action for an assault and battery, and the plaintiff, without specially alleging such an element of damage in his declaration, was allowed to prove, for the purpose of enhancing the damages, that he became subject to fits as a result of the assault. It is in fact only a means of showing the nature and extent of the injury inflicted on the plaintiff, by the beating and wounding alleged in the declaration. Of course, it was for the jury to determine whether the fits or spasms resulted from the assault and battery complained of; and it was only in the event of finding in the affirmative, that such consequences could be considered in estimating the damages. We think, therefore, the Court below was quite right in receiving the evidence stated in the first bill of exception, and in rejecting the ninth, tenth, and eleventh prayers.

2. As to the second and third bills of exception, the questions thereby presented may be considered together. It would seem to be settled, in this State at least, that the pecuniary circumstances of the plaintiff, and the extent and dependent condition of his family, are circumstances that may be taken into consideration by the jury, in estimating the damages to be awarded the plaintiff, for the injury suffered by him. This was expressly ruled in the case of Gaither vs. Blowers, 11 Md., 536, and we discover no sufficient reason for departing from the ruling there made. And it was held in the same case that the pecuniary circumstances of the defendant could be given in evidence to the jury, to be considered by them in awarding exemplary damages. In all cases of personal wrongs, the general rule is, if the injury has been inflicted maliciously or wantonly, and with circumstances of contumely or indignity, the jury are not restricted to actual or compensatory damages, but may give, in addition thereto, such exemplary or punitive damages as the circumstances of the case will warrant. And, in such cases, the pecuniary circumstances of the defendant are proper to be considered. An amount that might be extremely punitive and severe to a defendant of small or moderate means, would he light and trivial to a defendant of very much larger means; and hence the pecuniary circumstances of the defendant are proper to be considered in estimating the damages. Meibus vs. Dodge, 38 Wis., 300. But while the Court below was right in admitting the evidence stated in the second bill of exception, we are of opinion that the evidence allowed to go to the jury, as stated in the third exception, was too general and indefinite. The witness was asked the question, “What is the pecuniary condition of the defendant?” to which he replied, “that it was generally considered good.” It does not appear that the witness spoke from any personal knowledge of his own upon the subject, nor does it appear that his information was derived from any competent or proper source. Indeed, the answer of the witness conveyed no idea of the extent of the defendant’s means. The jury were left to speculate as to the extent of the defendant’s wealth, and that ought not to be allowed in such cases.

3. The evidence offered by the defendant, as set forth in his fourth and fifth bills of exception, and rejected by the Court, was clearly not admissible, and the Court committed no error in rejecting it. That the defendant was without knowledge to what the published card referred, except as informed by the card itself, furnished no sort of excuse for his seeking the plaintiff in the street and making an attack upon him. If he wanted an explanation there were certainly more appropriate methods of obtaining it than the one adopted. Hor was there the slightest error in rejecting the proffered evidence stated in the sixth bill of exception. For though it bo true that the plaintiff was an able bodied man, and a pugilist, to the knowledge of the defendant, those facts were quite immaterial, under the circumstances of this case. Such facts furnished no justification or provocation for the attack on the plaintiff in the street, when it is admitted that he was pursuing his lawful business, and was in no manner seeking a conflict with the defendant.

4. The seventh exception presents a question of a different character. The plaintiff having been examined as a witness in his own behalf, the defendant offered evidence to impeach the credibility of the plaintiff’s testimony, by proving that his character for truth and veracity was bad, and such as to render him unworthy of belief on oath. The plaintiff then, to support his credibilty, called a witness who testified that he lived in the neighborhood of the plaintiff, and had so lived for some years; that he knew the plaintiff, and that he had never heard his character for truth discussed or talked about, except by one person; he thought that if there was any general talk there about the plaintiff’s character for truth, he would have heard of it. Whereupon the plaintiff proposed to ask the witness the general question, whether he knew the plaintiff’s general reputation for truth in the community, and whether he would believe the plaintiff on oath; to which the defendant objected, but the objection was overruled, and the witness allowed to answer, which he did by saying, that he had never heard the plaintiff’s general reputation for truth questioned, and that he would believe him on oath.

Such mode of examination Was certainly a departure from what has been the long established practice in this State. It is manifest the witness was not speaking of any knowledge he had of the existence of any general reputation of the plaintiff for truth, whether good or bad, but simply of an inference drawn by himself from the negative fact that he had never heard the plaintiff’s character discussed. That certainly was not proof of general reputation, and much less was it a sufficient foundation for testifying to an opinion that the impeached witness was entitled to credit on oath.

Tlie long settled practice, both in England and in this State, though departed from to some extent in a few of the States in this country, requires that the witness called to prove character, either good or bad, should be interrogated as to his means of knowledge of the general reputation of the person in question among his neighbors, and what that reputation is. The evidence must be confined to general reputation, and the very form of the question assumes and implies that such general reputation must be known and proved as an affirmative fact, and not as an inference from a mere absence of common repute. Knight vs. House, 29 Md., 194, 199; Vernon vs. Tucker, 30 Md., 456. As laid down in 1 Greenl. Ev., sec. 461, the witness “must be able to state what is generally said of the person by those amongst whom he dwells, or with whom he is chiefly conversant, for it is this only that constitutes the general reputation or character.” This principle was fully adopted by this Court, in the case of Vernon vs. Tucker, just referred to; and it is supported by all the text writers upon the subject. Taylor, in his work on Evidence, sec. 1324, says, “ The regular mode of examining into the character of the person in question, is to ask the witness whether he knows his general reputation among his neighbors, — what that reputation is,- — and whether, from such knowledge, he would believe him upon his oath.” The same formula, in effect, is given in Swift on Ev., 143; 1 Phill. Ev., 432, and in 1 Greenl. Ev., sec. 461. The subject is fully examined in Wike vs. Lightner, 11 Sergt. & R. 199, 200, and in Teese, et al. vs. Huntingdon, et al., 23 How., 2, 11, where the diversity in some of the American cases is remarked upon by the Court.

But while the witness in this case had not the knowledge requisite to enable him to speak of the general reputation or character of the plaintiff for truth, and was therefore not entitled to say whether ho would believe him on oath or not, we thin]?: it is quite consistent with the rule we have stated, that where a witness is impeached hy the proof of a general had reputation for truth, the fact of the existence of such general reputation may he negatived, by a witness having equal means and opportunity of knowledge as the impeaching witness. The witness in negation of the fact of such general reputation may he asked the question, whether he lives in the neighborhood of the party whose character is in question, and what have been his means or opportunities of knowledge, and whether he knows of such general reputation as that proved hy the impeaching witness. But unless he has knowledge and can say that the party has a good general reputation for truth and veracity, he cannot say whether or not he would believe the party upon oath; for that would he simply matter of opinion, without any sufficient knowledge upon which to found it, superior to that possessed by the jurors themselves. But in thus allowing proof in negation of the fact of the existence of general reputation, large discretion in the trial Court will he required to he exercised, in order to prevent abuse in the production of witnesses to prove a mere negative, without, it may he, having had the occasion or proper opportunities to learn the character of the witness impeached.

It follows from what we have said, that there was error in the ruling as set out in the seventh exception.

5. And we think there was also error in the ruling in the eighth exception. The witness Cunningham, on the part of the defendant, proved that he was not present at the rencounter between the plaintiff and defendant, but that he arrived immediately thereafter, and found the plaintiff on the ground, and that he carefully examined the plaintiff’s face and found no marks or bruises on it. The witness was then asked, on cross-examination, whether he had not gone to the plaintiff’s store some time after the occurrence, and there stated to the plaiútiff .that the assault upon him was a great outrage, and that he would be foolish if he did not make the defendant smart for it. The witness replied that ho had made no such statement, though he might have been at the plaintiff's store about a week after the occurrence. The plaintiff then, for the purpose of contradicting the witness, proposed to testify, and was allowed, against the objection of the defendant, to state that the witness had come to his store about a week after the occurrence, and after he, the plaintiff, had explained the occurrence to the witness, he said that it was a great outrage, and that the plaintiff should make the defendant smart for it.

It is true, the credit of a witness may be impeached by proof that he has made statements out of Court, inconsistent with his testimony given in Court. But it is a general rule that a witness cannot be cross-examined as to any fact, which, if admitted, would be wholly collateral, and irrelevant to the matters in issue, for the purpose of contradicting him by other evidence, and in this manner to discredit his testimony. And if the witness answer such an irrelevant question without objection, evidence cannot afterwards be admitted to contradict his testimony on the collateral matter. 2 Phill. Ev. (6th Am. Ed.) 398; Goodhand vs. Benton, 6 G. & J., 481; Att’y Gen’l vs. Hitchcock, 1 Exch., 91, 101. A witness, however, may be asked any question on cross-examination, which, if answered in the affirmative, would qualify or contradict some previous part of his testimony relevant to the issue on trial; and if such question be put, and answered in the negative, the witness may then be contradicted as to such matter. 2 Taylor Ev., sec. 1300. But it would seem to be well established, that if a witness has simply testified to a fact, his previous opinion as to the merits of the cause, cannot be regarded as relevant to the issue. 1 Greenl. Ev., sec. 449; 2 Taylor Ev., sec. 1300.

Here the witness had simply testified to having seen the plaintiff very soon after the rencounter in the street of Erostburg, and that he examined his face and discovered no marks or bruises. Now, assuming that the subsequent statement imputed to the witness was in fact made by him, it had nothing in it to conflict with his previous testimony. After having the occurrence explained to him by the plaintiff himselfj he characterized it in strong terms; but that was his mere opinion upon the facts as related by the plaintiff. There was no reference whatever made to the facts testified to in chief by the witness, and there was no contradictory statement made in regard to those facts; ■and the most that can be made of the statement is, that it was a strong expression of opinion as to the conduct of the defendant in making the assault, and not as to the nature ■and extent of any wounds received by the plaintiff. All this was clearly inadmissible, and should have been rejected.

6. The instruction granted by the Court in lieu of the plaintiff's first and second prayers, when read in connection with the plaintiff's third prayer, which was granted, very fully and fairly instructed the jury upon the whole case. The jury were not confined to the mere corporal injury-which the plaintiff may have sustained; but they were at liberty, and the Court was right in so instructing them, to consider the malice of the defendant, the insulting character of his conduct, the rank and position in life of the several parties, and all the circumstances of the wrong, and thereupon to award such damages as the circumstances of the case required. Gaither vs. Blowers, 11 Md., 552; 2 Greenl. Ev., sec. 89. And while it is true, the law cannot value, and does not compensate for mental pain or suffering when the act complained of causes that ■alone, yet when it is connected with, and follows as a natural consequence of, a material wrong or injury, it is a legitimate element of damage; and the jury were so instructed in this case. And in actions of the character of the present, the jury are not confined in the assessment of ■damages to the consideration of the consequences of the injury that have ensued to the time of the trial, hut they may award damages for the natural injurious consequences that may continue or ensue after the trial; for the reason that no second action can be maintained for such consequences. Fetter vs. Bell, 1 Ld. Raym., 339; Wood’s Mayne on Dam., 592.

(Decided 20th December, 1883.)

7. Of the twelve prayers offered by the defendant, the Court granted the second, third, fifth, and twelfth; and in the prayers granted we think the defendant was given the full benefit of everything that he could in reason urge before the jury. The first prayer was obnoxious to several objections, but there was one that was sufficient to justify its rejection, and that was, that it was too indefinite, and was calculated to mislead the jury. The jury would have been left to speculate, on the construction of this prayer, as to the nature and extent of the injury “actually sustained,” for which they could give damages, or what was meant by the terms employed, of “some injury sustained as aforesaid.” They might have concluded that they were confined to mere corporal wounds and bruises, which, as we have shown, would have been misleading. The fourth and sixth prayers were clearly erroneous, and were properly rejected. The first of these was too indefinite, and the second inconsistent with the previous instructions of the Court. The seventh prayer was also clearly erroneous for the same reason that the first of the defendant’s prayers was properly rejected. It sought unduly and improperly to restrict the jury in their finding. And for the reasons already given, the eighth prayer was rightly rejected. We entirely agree with the Court below in all its rulings upon the prayers, and as to the instructions granted; but for the errors in the rulings upon the admissibility of evidence, we must reverse the judgment, and award a new trial.

Judgment reversed, and new trial awarded.