concurring in the above views, the judgment of the circuit court must be reversed, and a venire de novo awarded.
Dixon, C. J.My learned associate who writes the opinion of the court in this case, unintentionally no doubt but nevertheless in fact, misstates and does injustice to the position of the late Mr. Justice Paine, when he speaks of the views expressed in Morely v. Dunbar as being those of myself alone, and not of the court of which I was the mere exponent or representative. *586I bad supposed, until tbis case arose, tbat the views there expressed met the approbation of every member of the court. I had a right to think so, since I am certain Mr.' Justice Cole expressed no disapprobation or contrary opinion at the time. Rut if I was mistaken in this, I know I was not with respect to the views entertained by Mr. Justice PAINE, and I am positively sure that I hazard nothing of departure from the exact truth when I say that he fully concurred in every word contained in the opinion upon the point of damages here involved. 'The fact is, as I have good cause to and do well remember, that the opinion was written to suit and express, as nearly as I was able, the precise views which he took of the question, and his reasons for those views. It will be borne in mind that he was of counsel for the defendant in error and prevailing party in the case of Birchard v. Booth, and argued that case in this court, and that the conclusion reached in Morely v. Dunbar was directly opposed to that for which he had argued and in which he had been sustained in the former case. This was a marked circumstance connected with the case, and one which serves distinctly to recall to my mind all that took place in the consultation. It was an affair of some delicacy for Mr. Justice PAINE to repudiate the views for which he had contended with earnestness and sincerity in Birchard v. Booth, and yet such were the great qualities of his mind that he could do so without the least hesitation or reserve when convinced of his error. That was but one of the many occasions on which the learned judge displayed that singular freedom from prejudice and disposition for dispassionate and thorough and impartial examination, which so characterized his judicial career. The question was very thoroughly canvassed and considered both by him and myself, and he fully agreed in the views expressed in the opinion. And if he had not done so, every one at all acquainted with the operations of his mind, its firmness and energy, and the readiness and zeal with which he attacked positions and opposed theories or principles which he considered wrong, must know that the occasion *587would not bave passed witbont an opinion from bim, stating bis views and showing wherein and for what reasons be differed. The opinion, therefore, was that of the court, and not of myself alone, and as such should be received and considered.
And I still adhere to the decision then made, and think it should not be disturbed or unsettled. I fail to perceive anything in the reasoning of my present associate, or in that of the court to whose decision he refers, to convince me that the court was wrong in Morely v. Dunbar. I think the question was rightly decided, and must stand by the decision so long as I am convinced of its correctness. I am not so “profoundly skilled in analytic,” that I can, upon such a question,
-“ distinguish and divide
A hair ’twixt south and southwest side.”
I can enter into no argument to prove that the mental sufferings of the party injured cannot depend upon the motive of the party inflicting the injury. The affirmation or statement of the proposition is its own best refutation. Bad intent or malicious motive in the defendant may co-exist with those circumstances of indignity which cause great mental suffering or injury to the feelings, but it has no necessary connection with or dependence upon such circumstances. The circumstances causing injury to the feelings may exist to the fullest extent without any predetermined malice whatever on the part of the assailant, and when he is aroused and provoked to sudden passion only by the malicious conduct and wicked motives of the assailed. It is a proposition which nobody disputes, that the injuries to the person for which compensation is recoverable in actions of this nature, consist in the pain suffered, bodily and mentally, and in the expenses and loss of property they occasion. This rule is universally acknowledged, with innumerable decisions and precedents in its favor, and none against it so far as I know. Mental pain, distress and anxiety of mind, are as much and as truly part of the actual *588injury for which actual compensation should be given, as are distress, pain and disease of body, or expenses actually incurred, or loss of time and property proceeding from the same cause. Any attempt, therefore, to distinguish between these as the grounds of actual compensation, or for the purpose of mitigation, where that is proper, is fallacious and unfounded, and must in the end fail of success. It cannot but call forth from intelligent and considerate sources such criticisms as that of Judge Redeield upon the decision in Prentiss v. Shaw, the first case and only one before the present in which the discrimination was ever thought of or attempted. I cannot but regard Judge Redeield’s strictures as most well deserved and opportune. He speaks of the decision as a “ slipshod way ” of dealing with and disposing of the question, and, referring to the charge of the court below, which was sustained by the opinion of the full bench, remarks upon it as follows: “ The error of the charge seems to be in treating ‘ the injury to the plaintiffs feelings, the indignity and public exposure ’ as forming no part of the actual damages in the- action. Nothing could be further from the truth; since these things not only constitute a portion of the actual damages, but the principal portion. It is scarcely possible to conceive any proposition more unjust or unreasonable — not to say absurd — than to suppose, in a transaction like that through which the plaintiff was dragged by the defendants, that the actual ‘ injury to his person, and his detention,’ embraced all for which he was entitled to compensation under the head of actual damages." And again he says: “And there is no case, except the present, so far ás we have noticed, which attempts to discriminate between corporeal and external injuries, and those which affect the sensibilities.” 8 Am. Law Reg., N. S., 726.
I fully coincide with the views thus expressed by the eminent jurist and author whose words I have quoted, and believe it will be found as difficult as he represents, to point out a scintilla of authority any where in support of the attempted dis*589crimination. The supposed distinction is as unsustained by authority as it is unfounded in principle and destitute of any sound process of reasoning upon wbicb to maintain it.
Upon this question,’ as upon nearly all others, the truth seems to lie at one extreme or the other. Either the decision in Morely v. Dunbar was all right, or it was all wrong. Logically and upon principle thei’e can be no “middle ground” between the rule which it establishes and the rule of those cases which hold that no circumstances of malicious conduct and provocation on the part of the plaintiff will reduce his damages in an action for personal injury below compensatory or actual damages, unless such circumstances amount to a complete justification. Compromise or “ middle ground ” makes shipwreck of principle. It has done so here. Between the rule for which Judge Redfield seems to contend, and which is that last stated, namely, that compensatory or actual damages must in all cases be given, and that circumstances of provocation can only be urged in reduction or extinguishment of damages which are vindictive or punitory, and the rule for which I contend, which is that of Morely v. Dunbar, the distinction and difference of principle upon which the rules respectively rest are broad and marked, and.I can readily perceive how different minds might rationally and logically disagree with respect to them. But it is not so when we come to the hair-splitting operation of resolving actual damages into their real or supposed elements, and attempting to discriminate between this element and that, and holding that compensation for the one may be reduced or withheld, while that for the other shall not be, on account of the provocation by which the whole injury was produced. There cannot, as it seems to me, exist any sound basis for such discrimination; and, being subversive of principle and wholly illogical and arbitrary, it works only confusion of ideas, and must lead to the greatest embarrassment in the administration of justice. I could never give my assent to it, but, for the sake of being governed by some kind of principle would far rather *590return to the rule of Birchard v. Booth. And this is the rule which Judge Redfield seems to look upon as correct, and it is not unsustained by some very respectable.authority. Donnelly v. Harris, 41 Ill., 126; Cushman v. Waddell, 1 Baldwin, 57; 3 Am. Jurist, 301.
But, as will be seen by recurring to the references in Morely v. Dunbar, by far the greatest weight of authority is in favor of the rule there held. But those are not by any means all the decisions which sanction the rule. On the other hand they are so numerous that those to the contrary constitute a most insignificant exception. I cite also the following: Rhodes v. Bunch, 3 McCord, 65; McKenzie v. Allen, 3 Strobh, 546; Matthews v. Terry, 10 Conn., 459; Coxe v. Whitney, 9 Mo., 531, 532; Collins v. Todd, 17 Mo., 539, 540; Corning v. Corning, 6 N. Y., 103; Willis v. Forrest, 2 Duer, 318; Tyson v. Booth, 100 Mass., 258; Marker v. Miller, 9 Md., 338; Bingham v. Garnhault, Buller’s N. P., 17.
And the case of Prentiss v. Shaw, instead of being a limitation of the same rule, is in reality only an extension of it. My brethren, as I think, entirely misapprehend the effect of the decision in this particular. That was not a case of immediate private or personal provocation producing the injuries complained of, and the decision has no direct or proper application to provocation of that kind. It was the public misconduct of the plaintiff which was there received in mitigation of damages for the injuries inflicted upon him by the mob, and upon the distinction stated. It is this feature of the decision which Judge Redfield so sharply criticises, and I think with reason and propriety. I question whether the principle of mitigation goes so far, but yet the court did so extend it, subject only to the limitation arbitrarily fixed in the opinion.
As observed by the court in Willis v. Forrest, “ the rule as first laid down in this country, so far as we find, in Avery v. Ray, prevails, with scarcely an exception, if indeed there is any, in all the states of this Union, and its justness and policy have *591been dwelt upon, and favorably considered, in a large number of cases. It is the established rule .of this state, and has been followed and recognized in several cases decided since that of Lee v. Woolsey.”
And upon principle, I cannot doubt the correctness of the rule. The man who stands in or walks the street back and forth in front of my bouse, or enters my yard, for the base and hateful purpose of applying opprobrious epithets or using scurrilous and indecent language to my wife or daughter or other unoffending and helpless member of my family, and, when I warn him to desist, does not, and whom, then, acting under the impulse of the just and uncontrollable indignation and wrath thus excited, I proceed to publicly chastise or knock down and silence as he deserves — such a man, I say, is entitled to no compensation for the actual damages which he has thus deliberately and of his own wrong and malice brought upon himself. It would be the height of injustice to say that I should pay his doctor’s bills, or compensate him for his bodily pain and loss of time or property during the period of his confinement or disability occasioned by the injury. It may be all right to discourage breaches of the peace, personal rencounters, and every species of brutal force which tend to uncivilize the community. This is the principle upon which the opposite rule is founded; but still I think there is a limit to it, or to that policy which does not encourage men in taking the law into their own hands. I think this much is due and allowable for the infirmities of men, and by way of discouraging lawless and malicious conduct and provocation. As correctly remarked by Chief Justice Le Grand, in Gaither v. Blowers, 11 Md., 552: “ The law mercifully pays this tribute to the weakness and infirmities of human nature, which subject it to uncontrollable influences when under great and maddening excitement superinduced by insult and threats. But it wholly discountenances that cruel disposition which for a long time broods over hastily and un-guardedly spoken words, and seeks, when opportunity offers, *592to make them an excuse for brutal behavior. With such a temper it has no sympathy. It charitably deals with sudden gusts of feeling, but rigorously with the malignant and cruel. This is its ethics.” I agree with the court, therefore, in Rhodes v. Bunch, where it said that the defendant in an action of assault and battery may prove that the plaintiff traduced his character, insulted his wife or daughter, or that he found him within his enclosure attempting to steal his goods; or any other fact to show the motive which induced the act. And I concur also in the further observation of the court in the same case, that, “ although men are not to be encouraged in taking the law into their own hands, either to obtain satisfaction for a private injury, or to redress a public wrong, yet the law wdll excuse when it cannot justify, and mitigate when it cannot excuse, if the transaction has proceeded from a proper motive, and the injury to the party complaining is not greater than he deserved.”
Entertaining these views, I agree, of course, that the judgment appealed from should be reversed, though I dissent in part from the opinion pronounced by my brethren.
By the Court.— Judgment reversed