Ratteree v. Chapman

Simmons, Justice.

Sarah A. Chapman brought suit against Alexander Ratteree for damages alleged to have been sustained by her, for an assault and battery committed on her person by the defendant, Ratteree. On the trial of the case, the jury returned a verdict in favor of the plaintiff for damages. The defendant made a motion for new trial on the several grounds contained therein. The court overruled the motion upon each and all the grounds, and the defendant excepted to this judgment overruling the motion, and assigned the same as error.

1. We see no error in excluding the answer of the witness, Alexander, to the question asked him about his mother. The counsel admitted, in answer to the court, that it was for the purpose of proving her to be “ a low and vile woman.” If that was the purpose, it could not be done by proof of specific acts of adultery, but by proof of general bad character. We are not satisfied that the ground the judge put the exclusion of it on is not good also. The witness was a youth of tender years, not perhaps knowing, or capable of properly considering, the effect of an afiirmative'answer to the question. The judge may have been right in protecting him. We put our decision, however, on the other ground. See, on this subject, 60 Ga. 509.

2. We see no error in the third ground of the motion. While the declaration does not charge in words that the injuries were permanent, yet from the allegation therein, it might properly be so construed. Evidence as to the injuries being permanent was admitted without objection. “If proof be allowed to go to the jury, without objection, outside of those alleged, we hardly think that the plaintiff .should be held strictly to the allegata, no objection having been made to the admission of the evidence, and no motion to rule it out. The reason is obvious after verdict, because by amendment the declaration could have been amended, so as to cover the omitted allegation.” Savannah, Florida & Western Railway vs. Barber, 71 Ga. 648 ; Howard vs. Barrett, 52 Id. 15; Field vs. Martin, 49 Id. 268. As the case will be sent back for a new trial, this allegation can be made by amendment, if counsel so desire.

3. Error is assigned in the fourth ground, because the court charged the jury as follows: “No special plea of justification is filed; that is, no plea by the defendant admitting use of the violence alleged in the declaration, and justifying it by saying that the plaintiff provoked the assault by the use of opprobrious words or abusive language, or that the plaintiff was the aggressor and made the first ass ault, andthat the defendant used such force in self-defence. Had the defendant desired to show a justification of the matters charged, it is incumbent on him to specially plead it. Having failed to do so, he impliedly admits, if the jury shall find from the evidence that he committe’d an assault and battery in the manner and form as alleged, that it was done not under circumstances of legal justification. But the defendant insists that he did not use any positive or aggressive force toward the plaintiff, or harmful violence upon her person at all; that she made an assault upon him, and that he only used such force as was necessary to escape out of her hands ; that is, he denies that he committed any assault and battery upon her whatever. These constitute the issues you are to try and determine by your verdict. The court instructs the jury that, under the pleadings in this case, the only question for the jury to determine is, whether the defendant committed an assault and battery upon the person of the plaintiff, as charged in the declaration. And if you find from the evidence that the defendant committed the assault and battery complained of, it cannot be claimed as a justification of such assault by the defendant, in the absence of a plea of jhstification, that the plaintiff made the first assault or used offensive language' to defendant which provoked him to it. Under the pleadings here, if the plaintiff used opprobrious words and abusive language to the defendant, or if she made the first assault upon him, evidence of either or both of these facts might be considered in mitigation of damages, but could not be received by the jury in complete justification of the defendant’s act. The verdict should still be for the plaintiff, if the defendant committed an assault and battery upon her as charged, but the amount of her recovery should be lessened by the jury, if the evidence discloses that the defendant acted under provocation.”

The charges in this ground are objected to, because: “(1) there being no plea of justification, all said on that subject was irrelevant and misleading; (2) if the plaintiff assaulted defendant, and defendant beat her simply in defending himself, he would not have been liable, and the verdict should have been, in that event, for the defendant; but under the charge, the jury were bound to find for the plaintiff, though she abused and unlawfully beat defendant first, and though his beating of her, under those circumstances, may have been lawful; the court erred in confining the jury to diminishing damages in that event.”

We do not think the court erred in giving this charge. The declaration alleged that the defendant had committed an assault and battery upon her person. He filed the plea of not guilty, or the general issue. The issue that this plea raised was a denial of the allegations in the declaration; that is, that he did not unlawfully assault and beat her. “ Under this plea he could only give in evidence matter which directly controverts the fact of his having committed the acts complained of.” 1 Chitty on Plead, ing, p. 534. In a case somewhat similar to this, this court held, that it was not error in the court to charge the jury that they could not consider the fact of justification under the plea of the general issue. Kerwich vs. Steelman, 44 Ga. 197. See also, code, §3458; 1 Hilliard on Torts,192; 2 Greenleaf Ev. §§92, 98 and 274. We think that in this part of the charge, taken altogether, the court gave the defendant all the rights he was entitled to under the law, perhaps more, as he charged the jury that they might take into consideration whether the plaintiff used to the defendant opprobrious words and abusive language, or whether the plaintiff made the first assault upon the defendant, in mitigation of damages. It is held in several cases that this cannot be done under the plea of not guilty. See 1 Hilliard on Torts, p. 192.

4. The fifth ground of the motion for new trial is as follows : “ 5th. The court erred in the sixth part of said charge, in using this language: ‘And in this case, if you believe from the evidence that the defendant, without provocation, assaulted and beat the plaintiff, as charged in the declaration, and that such assault was a malicious, wanton and aggravated one, and if the jury further believe from the evidence that justice and the public good require it, then the law is, that the jury are not confined in their verdict to the actual damage proved, but they may give exemplary damages, not only as compensation for the wounded feelings of the plaintiff, but to punish the defendant, and to deter others from the commission of like offences.’ It was error, because the jury had nothing to do with ‘ public good ’ and had no right to so punish defendant by their verdict as to ‘ deter others ’ than the defendant ‘ from the commission of like offences.’ ”

We think the exception made to this charge is well taken. Whatever may have been the dispute amongst text writers and courts heretofore, as to this question under consideration, the legislature has settled it in this State. It declares that “ in torts, when there are aggravating circumstances, the jury may give additional damages, either to deter the wrong-doer from repeating the trespass, or as compensation for the wounded feelings of the plaintiff.” The judge in his charge did not confine the jury to the object set out in the code, but allowed them to consider whether “justice and the public good” required additional damages, not only to deter the defendant from hereafter repeating the trespass, but “ to deter others from the commission of like offences.” In our opinion this was putting a heavier burden on the defendant than our law authorizes. In Crockett vs. Crockett, 73 Ga. 647, this court reversed the court below upon a similar ground to this, and said: “ It is best that the law of the case, when expressed in the code, be given as expressed, in charge to the jury.”

5. We have disposed of the errors complained of in the sixth ground, in considering the same question in our remarks on the third ground of the motion.

6. Error is assigned in the seventh ground, because the court instructed the jury that if they saw proper, “they might allow interest on the sum awarded, at seven per cent, per annum from the time of the injury to the present.” We think this was error. In a case of tort, when the law allows the recovery of exemplary damages, the allowance of which and the amount thereof being entirely in the discretion of the jury, we do not think that the law contemplates or will allow interest to be computed on the sum awarded by them.

Judgment reversed.