Berkner v. Dannenberg

Lead Opinion

Little, J.

An action to recover damages on' the part of Berkner, for personal injuries which he alleged the defendants had inflicted on him, was tried, and there was a verdict for the defendants.

1. In his bill of exceptions the plaintiff in error alleges that the trial judge erred in overruling the demurrer which he filed to the pleas of the defendants. Evidently the main purpose of the demurrer was to call in question the sufficiency of the defendants’ answers as pleas of justification. We are of the opinion that the answers filed can not in law be treated as pleas of justification. The action brought by the plaintiff sought a recovery in damages for a tort, and the Civil Code, § 3891, declares that in every case of a tort, if the defendant was authorized by law to do the act complained of, he may plead the same as a justification. The test, therefore, to which the answers are to be subjected to determine whether or not they can properly be classed as pleas of justification is, first, do the answers admit the battery as set out in the petition; second, do the matters set up as a reason for committing the battery, in law, authorize the defendants to commit the battery? If the pleas be wanting in either of these particulars, they are not pleas of justification. An examination of the answers discloses that they do not admit the assault and battery as charged in the petition. In order to make a plea one of justification, it must plainly admit that the act as charged in the petition was committed by the defendant. Under such a plea there can be no issue between the parties as to whether the acts charged were committed by the defendant, but the only issue raised is whether the defendant was in law justified in doing the acts for which the plaintiff seeks redress. The answers in this case therefore can not be considered as pleas of justification. By the Civil Code, §3892, it is declared that what does not amount to a justification may be pleaded in extenuation and mitigation of damages; and while, much of the matter contained in the answers could well have been omitted, we are not aware of any reason why the answers should have been stricken, but, on the contrary, are of opinion that the matter which they contained could properly be pleaded in extenuation or mitigation of damages, under the code section just cited.' Those grounds of the demurrer not directed to the answers as pleas of justification do not raise issues of sufficient importance to cause the pleas to be stricken. Although much of the language and many of the expressions contained in the answers to which these grounds of the demurrer are directed are objectionable, and add no weight to the material averments of the plea, and should not have been set out, yet they can properly be treated as mere surplusage.

2. The motion for a new trial contains 35 grounds. A careful examination of each of these, in connection .with the brief of evidence and the charge given to the jury, has resulted in the conclusion that the trial judge erred in overruling the motion for a new trial. The particular causes for a reversal of the judgment will be hereafter specifically set forth. In the meantime, however, a number of immaterial errors, set out in some of the grounds of the motion other than those particularly mentioned, appear to have been committed on the trial; but they are not of sufficient importance of themselves to work a new trial. These errors are found set out in the first, second, eighteenth, and other grounds which are indicated in what will be hereafter said. The grounds not thus indicated or specifically set out do not show the commission of error. In the fourteenth ground of the motion, error is assigned to the action of the court in instructing the jury as follows: “ It is a rule of law in this State, laid down in the code, that in all cases of assault and battery (and the charge in this case on the part of the plaintiff is that the defendants did commit an assault and battery upon him, and the plea of the defendants admits that an assault and battery was committed on the plaintiff) the law permits, wherever an assault and battery is made, and an effort is made on the part of the person inflicting that assault and battery to justify, that is to say, to show that the person who inflicted the assault and battery was justified in that battery, the law says that the jury trying the case may have shown to them by the testimony any opprobrious words used by the person beaten to the person beating, by the person who inflicts the injury or battery or beating, in order that the jury trying the case may pass upon the question of ■whether or not the battery inflicted was disproportionate to the opprobrious words, if they were insulting words and opprobrious words, whether the battery inflicted was disproportionate to the words used.” • The provisions of our code to which undoubtedly the trial judge had reference in this part of his "charge aTe to be found in the Penal Code, § 103, which is in the following language : “ On the trial of an indictment for an assault, or an assault and 'battery, the defendant may give in evidence to the jury any opprobrious words, or abusive language, used by the prosecutor, or person assaulted or beaten; and such words and language may or may not amount to a justification, according to the nature and extent of the battery, all of which shall be determined by the jury.”

In terms the provisions of this section are only applicable in the trial of one who is charged with the offense of assault, or assault and battery, and they have no applicability to a civil case, so far as they may be construed to allow the jury to find opprobrious words to be such a justification for an assault and battery as to prevent a recovery by the plaintiff. On the contrary, our Civil Code, § 3826, but declares the doctrine of the common law when it lays down the rule that “ a physical injury done to another gives a right of action, whatever may be the intention of the actor, unless he is justified under some rule of law.” The rule for measuring damages in such an action is stated (Civil Code, § 3905) in these words: “ If the injury be small, or the mitigating circumstances be strong, nominal damages only are givén.” The suit here is to recover damages for physical injuries. The plaintiff is entitled, when he shows that these injuries were inflicted by the defendant, to recover nominal damages at least, unless the defendant on his part shows that he was justified, under the law, in the commission of the assault or battery, or both. As we have said, the rule that opprobrious words may, in the estimation of the jury, afford a justification of an assault and battery, is confined to the trial of one who is charged on the criminal side of the court with assault and battery as an offense against the laws of the State. At common law opprobrious words would never justify an assault or battery (Berry v. State, 105 Ga. 683), and we have no statute which makes such words a justification in a civil action. It must therefore be ruled that the charge complained of was error. While this is true, evidence of opprobrious words or abusive language may nevertheless properly go to the jury, not as proof of justification, but to be considered in extenuation and mitigation of damages which must be awarded, except in cases where the acts admitted or proved are justified.- We know of no rule of law, when a physical injury is shown to have been intentionally inflicted, which bars the right of the injured person to at least recover nominal damages, when it appears that the only cause for the infliction of the injury was opprobrious words used by the person injured to him who caused the injury. We are, of course, dealing with the charge as set out in a ground of the motion, and can not be understood as intimating anything in relation to the other claim made by the defendants that' what they did was in consequence of a belief on their part that the plaintiff was about to draw and use a weapon. The evidence in relation to that and other circumstances is for the jury; but inasmuch as opprobrious words and abusive language will not of themselves free a person who actually committed an assault and battery from liability in an action for damages, it is not, we think, necessary to discuss or pass upon the question of the mutual rights of the' father, son, and son-in-law to protect each other.

3. Another ground of the motion complains that the court erred in charging the jury that they were not authorized to consider the question of punitive damages, and that they were not authorized to find punitive damage's for the plaintiff, but, if they should find damages for the plaintiff, their verdict should be for such damages ■“as will compensate him for the injury inflicted upon him, if such injury has been inflicted upon him, from which he still suffers, as well as such injuries suffered from time to time in the past, in the way of physical injury, as well as compensation for wounded feelings.” We have not quoted in full the part of the charge complained of, because of its length, but we gather from it that the charge instructed the jury that in a case like this they were not authorized to find punitive damages. So construed, we think the ■charge was error.. In the case of Ratteree v. Chapman, 79 Ga. 574, it was ruled by this court that under the law of this State, in actions for 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 wounded feelings. The action brought in that case was to recover damages for an assault and battery which the plaintiff alleged the defendant had inflicted on him; and in the case of Parker v. Lanier, 82 Ga. 216, which was an action to recover damages alleged to have been sustained by the plaintiff at the hands of the defendant in consequence of an assault and battery, this court expressly ruled that punitive damages as well as compensatory damages, might be awarded. Under these authorities it must be ruled that this part of the charge was error. We, of course, do not mean to be understood as saying or intimating that under the evidence in this case the jury should or should not have awarded punitive or exemplary damages.' The plaintiff contended that the defendants, without cause or any mitigating circumstances, committed an aggravated battery on him. Whether they did so or not, whether there were aggravating circumstances or not, are all questions for the jury ; but in the charge excepted to the jury were instructed that they could not consider the question of. punitive damages. As was said by Mr. Justice Simmons in Batteree v. Chapman, supra, “ Whatever may have been the dispute amongst text-writers and courts heretofore, as to this question, . . the legislature has settled it in this State; ” and he then proceeds-to quote from the Civil Code, § 3906, which declares, in effect, that where there are aggravating circumstances either in the act- or in the intention, in the commission of a tort, 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. Under these rulings it must be held that the charge-complained of was error.

4. It is further complained that the court erred in ruling, over the objection of, the plaintiff, that the plea filed by the defendants in this case was a sufficient plea of justification to entitle the defendants to the opening and conclusion in the argument before the. jury. It is not necessary for us to repeat what we have said above, that in our judgment the answers filed were not pleas of justification, but from what has been said on that point it is clear that the defendant was not entitled to the opening and conclusion, which has been ruled by this court to be an important right. This right-is only secured when the plea admits the commission of the acts as they are charged in the petition. Such an admission is necessary to characterize the plea as one of justification, which alone authorizes the defendant to have the opening and conclusion. It-was ruled in the case of Ransone v. Christian, 49 Ga. 491, construing the Civil Code, §3891, which relates to pleas of justification, that under the law of this State a plea of justification, filed in a case of libel, admitted not only the publication but the manner of it as charged in the declaration. See also, to the same effect, Ocean S. Co. v. Williams, 69 Ga. 251. And in the case of Seymour v. Bailey, 76 Ga. 338, being a case wherein the plaintiff sought to recover damages because the defendant “ with an ax-helve and with his fist gave and struck petitioner a great many violent-blows,” etc., it was held, “that it was not a sufficient plea of justification to allege that the plaintiff made an assault upon the defendant, and would have beaten and ill-treated him if he had not immediately defended himself against the plaintiff, and therefore he did a little beat, ill-treat, and wound the plaintiff necessarily and unavoidably, and the plaintiff, by his assault, brought it upon himself; ” and that the plea did not give the defendant the right to open and conclude before the jury. Under the plea filed in this case much of the matter alleged in the petition was not admitted, but was denied. The effect of a plea of this character is to still leave upon the plaintiff the burden of proving those allegations not admitted. Hence, the plea was not one of justification, and did not give to the defendants the right to open and conclude.

We have not, for want of time, been able to take up the grounds of the motion seriatim, but it is believed that the rulings herein made and the reasons assigned for the same cover' all the material points made in the record.

Judgment reversed.

All the Justices concurring, except I/iompkin, P. J., absent, and Candler, J., not presiding.

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Concurrence Opinion

Fish, J.

While I concur in the result reached by the court in this case, upon the other grounds dealt with in the opinion-of the majority of the court, I respectfully dissent from the proposition laid down in the second headnote. It is undoubtedly true that under the common law opprobrious words or abusive language could not be pleaded in justification of an alleged assault and battery, either upon a criminal prosecution for the alleged offense, or in a civil suit for damages based upon the alleged tort; and it is also true that unless this principle of the common law, as applied to such a civil action, has been abrogated in this State by the statute (Penal Code, § 103), it still prevails. In my opinion, however, there is no escape from the conclusion that this principle of the common law was abolished in this State, both as to criminal and civil actions, when that statute was enacted. Under the common law, whenever a person could plead justification to an indictment for assault and battery, he could plead justification in defense to an action for damages based upon the same act. To an indictment for assault and battery he could plead that the alleged battery was committed in self-defense, and to a civil suit based upon the same act he could enter the same plea; and if he sustained it in the latter case, he was as much entitled to a verdict in his favor as he would be if he sustained it in the former. The same principle of justification applied in each case. The Civil Code, § 3891, provides: “ In every case of tort, if the defendant was authorized by law to do the act complained of, he may plead the same in justification.” And section 3826 declares: “ A physical injury done to another gives a right of action, whatever may be the intention of the actor, unless he is justified under some rule of law.” Therefore, if, in a civil action for alleged assault and battery, “ the defendant was authorized by law to do the act complained of, he may plead the same in justification; ” and “ a physical injury done to another ” gives no right of action to the injured party, if the person inflicting the injury was “ justified under some rule of law.” The Penal Code, § 103, provides: “ On the trial of an indictment for an assault, or an assault and battery, the defendant may give in evidence to the jury any opprobrious words, or abusive'language, used by the prosecutor, or person assaulted or beaten; and such words or language may or may not amount to a justification, according to the nature and extent of the battery, all of which shall be determined by the jury.” It seems to me clear that when, in a prosecution for assault and battery, opprobrious words or abusive language do amount to a justification of the beating, the person doing the beating “ was authorized by law to do the act complained of,” and that it therefore follows that in a suit for tort, based upon the same beating, he “ may plead the same in justification.” Clearly if, in a given case, opprobrious words, or abusive language, would, in a prosecution for assault and battery, amount to a justification for the particular beating inflicted, the person doing the beating “was justified under some rule of law.” He would be justified under the rule of law laid down in the above-quoted section of the Penal Code, and, being justified under this rule of law, the physical injury which he inflicted upon the other party would give no right of action to the latter.

• “ Battery is the unlawful beating of ' another.” Penal Code, § 102. Therefore a beating which is lawful is,in the legal sense, no battery. A beating which is justifiable is a lawful beating. A lawful beating affords no cause of action to the person beaten. Opprobrious words or abusive language may, as we have seen, justify a beating, if, in the opinion of the jury trying the case, the beating was not disproportioned to the provocation given by such words. Where opprobrious words or abusive language do justify a beating, the beating is lawful, and, being lawful, no right of action can flow therefrom to the person beaten. In my opinion, it will not do to say that a beating may be justifiable, and therefore ■lawful, when the State is prosecuting the beater for a violation of its criminal statute, and that the same beating is obliged to be unjustifiable, and therefore unlawful, when the person beaten is suing his assailant for damages alleged to have been sustained in consequence of the beating. It can not be that the State, when it, by a prosecution for assault and battery, is seeking to protect the right of every law-abiding citizen to personal security, will justify one person for having beaten another, upon a ground which affords no justification whatever for the act complained of when the issue is between the person assaulted and beaten and his assailant. I can not believe that the State in a criminal case has one standard by which to measure the right to personal security, and in a civil case has another standard by which to measure the same right. The right for the protection of which the State enacted its criminal statute, and in vindication of which it brings its criminal prosecution, is the sanie right for the alleged violation of which the person beaten brings his action for damages. And when the State, as the sovereign protector of the rights of its citizens, in a statute enacted for the purpose of protecting the right of personal security, provides that a given provocation may justify one person for assaulting and beating another, it impliedly declares that, under such circumstances, the right of the person assaulted and beaten to personal security has not been violated. When one person is justified in striking another, he has the right to do so. If ‘he has the right to strike the blow,, he can not, by striking it, violate any right of the person whom he strikes ; and unless some right of the person struck is violated by the blow, no right of action for damages can accrue to him therefrom.

For these reasons I am of opinion that the charge of the trial court, dealt with in the second division of the opinion of the majority of this court, was not an erroneous statement of the law. I may add that while the precise question which I have been considering may not have been directly involved in Tucker v. Walters, 78 Ga. 232, it is very clear that this court, as then constituted, was of opinion that the provisions of our statute in reference to opprobrious words, or abusive language, as a justification for an alleged assault and battery, were applicable in a civil case. There Tucker 'sued Walters for damages, for having stabbed him with a pocket knife, and Walters’s defense was that the stabbing was done in self-defense. The evidence showed that Tucker first assaulted and beat Walters. The plaintiff contended that the assault which he made on the defendant was justified by certain words which the latter used to him, which, in the manner and under the circumstances in which they were used, were opprobrious. The trial judge instructed the jury that the words in question, whether spoken in a mild, kind, or insulting manner, were not opprobrious words, and that the manner in which they were spoken could not make them so. •The main ground of the motion for a new trial was that the court erred in this instruction; and this court held that the charge was .erroneous, upon the ground that the question whether the words were opprobrious or not was one to be determined by the jury. Clearly, if the law in reference to opprobrious words as a justification for a beating does not apply in a civil suit for damages, the question whether the instruction to the jury was, abstractly, right or wrong was utterly immaterial, as, whether right or wrong, the plaintiff could not have been hurt by the charge given. Therefore, the fact that this court gravely considered and determined the question presented shows that it was of opinion that the provision, now contained in the Penal Code, § 103, with reference to opprobrious words, is applicable in á civil case.

Case Details

Case Name: Berkner v. Dannenberg

Court Name: Supreme Court of Georgia

Date Published: Jan 10, 1903

Citation: 116 Ga. 954

Court Abbreviation: Ga.