| Va. | Apr 8, 1880
This is a writ of error to a judgment of the circuit court of the city of Alexandria.
The action was trespass on the ease, wMeh the defendant in error (Thompson) instituted against two defendants, George W. Harrison and Eeverdy J. Daingerfield, jointly, charging them, in various counts set out in the declaration, with assault and battery made upon him jointly by the said parties, by which said assault he was so wounded. by a pistol shot fired by them as to cause the loss by amputation of one of his legs; and laying his damages for said injury at the sum of $10,000.
Both the defendants being summoned to answer this action, and the defendant, Harrison, not appearing, a conditional order was confirmed in the clerk’s office as to him and an inquiry of damages directed.
The defendant, Daingerfield, appeared and demurred to the declaration and entered his plea of “not guilty.”
To this judgment a writ of error was awarded by one'of the judges of this court.
I am of opinion that the circuit court did not err in overruling the demurrer to the declaration. The summons sued out was to answer an action of trespass on the case, and the declaration charged the defendants with an assault in various forms in three distinct counts, and charging, as the effect of said assault, the wounding of the plaintiff so as to cause amputation of his leg, and adding a fourth count, setting forth an ordinance of the city of Alexandria, prohibiting the discharge of firearms in said city, and also alleging the continued sickness, and disorder, and suffering in consequence of said wound, and the expenses in medical attendance and other costs consequent on said wound, which he claimed amounted to a large sum.
The allegations of this declaration, taken to be true by the demurrer, certainly make out a case of trespass, and that action would lie at common law. And under our statute, wherever an action of trespass will lie, trespass
It is proper to remark that the counsel who argued the case here did not rely upon the demurrer, but the point having been raised in the court below, I have thought it proper to notice it.
I now pass to the consideration of the main questions in this case, which are raised by the instructions given by the circuit court, and upon the motion for a new trial, upon the ground that the verdict -was contrary to the evidence.
It is first to be remarked that in this case there is no certificate of facts, but only a certificate of the evidence; and the rule is well settled, that in such a case, as has been repeatedly decided by this court, the appellate court will only consider the evidence introduced by the party prevailing, and will not reverse the judgment, unless after rejecting all the parol evidence of the exc'eptor, and giving full faith and credit to that of the adverse party, the decision of the court below still appears to be wrong. Read’s case, 22 Gratt. 924" court="Va." date_filed="1872-12-11" href="https://app.midpage.ai/document/read-v-commonwealth-8481812?utm_source=webapp" opinion_id="8481812">22 Gratt. 924; Gimmi v. Cullen, 20 Gratt. 439, and cases there cited; Dean’s case, 32 Gratt. 912" court="Va." date_filed="1879-07-31" href="https://app.midpage.ai/document/dean-v-commonwealth-6806630?utm_source=webapp" opinion_id="6806630">32 Gratt. 912; Danville Bank v. Waddill’s adm’r, 31 Gratt. 469, and cases there cited.
Observing this rule, we proceed to consider the evidence certified, which is as follows : The plaintiff testified that on the night of the 5th day of March, 1877, in the city of Alexandria, Virginia, he was at his restaurant on the west side of St. Asaph street, between King and Cameron streets, when about twelve o’clock
Plaintiff was then seated in a chair holding his wounded foot. Harrison came up much excited, saying, “ My God, what can I do for you,” and was greatly excited and alarmed. Harrison rose up and turning to defendant he said, “ This would not have happened if you hadn’t told me to fire a salute.” To which defendant answered, “I didn’t suppose you were d—d fool enough to fire into the house—I thought you’d fire into the air.” Presently afterwards Smoot, Daingerfield and Harrison left, one after another, in the order named. Previous thereto Bobey and the boy, Jack, had gone for the doctor, who came and dressed his wound.
On the next morning defendant, Daingerfield, came to see him, and Mr. McLean and the boy, Jack, were
The plaintiff next offered John Pobey, who testified as follows:
That he was engineer on the Alexandria & Washington railroad, and brought down the special train from Washington on the night stated. He was waiting for a steam of oysters at Thompson’s restaurant. Thompson asked him why he was out so late. He replied he brought special train down. Thompson then asked if there were any drunken people on board. He replied there were some drunk,” but too drunk to give any trouble. Plaintiff1 said he had better close up, and had his front door closed and one light turned.down.
Soon he heard the voices of persons on the street seeking admittance, loud knocking on the front door and window, and voices cursing and swearing. A few minutes afterwards Smoot entered by the side door from the alley, and on entering said, “ Thompson, open the door; Pev. is outside.” Presently afterwards heard the pistol shot, saw Thompson was wounded, and started out of the side door and ran for the doctor.
Isaac Johnston (colored) was next offered, and testified as follows:
He lived opposite to plaintiff’s restaurant at that time, and was standing in his door on the night of this occurrence. Saw three men in front of the restaurant. One of them presently went up the alley; the other two remained talking and knocking on the door and window. They were cursing and swearing. He recognized the two outside as defendant and Harrison. He heard Harrison say, “Shall we give him a salute?” and the other replied, “Yes, salute the damn black republican.” At the time this was said Daingerfieldstepped back from the door towards the curb and the pistol was fired; presently afterwards heard the pistol shot.
Frederick Stubbs was offered, and testified as follows :
That at this time he lived opposite to Thompson’s restaurant, next to Johnston, and was at his window at the time of the shooting Of Thompson. He spoke to the witness Johnston as he went in his door, and afterwards from his second-story window; saw the three men at the front door, but could not recognize them by sight. One went up the alley, and heard them talking; was attracted by the loud talking and swearing and knocking on the door and window. Some one, not Harrison, said, “Let’s give him a salute,” or “ Give him a salute,” and heard Harrison, whose voice he knew, say, “I’ll do it; the old republican; ” and he thought they were going to cheer him,
The plaintiff’s colored hoy Jack was next offered, and testified:
That on the morning of the 6th of March, 1877, he was present at the conversation between the defendant, Thompson and McLean. McLean said that if it was him he would have Harrison arrested. Defendant said, “Ho, I would not do it; he is not worth anything anyhow.” McLean said he did not care; he would have him arrested and punished. Defendant said he thought Harrison had fired in the street.
Drs. Lewis and Stabler testified that they amputated the limb to save Thompson’s life; that he suffered great pain and anguish from the wound, and his health was seriously injured thereby, his chest having been involved, because of the nervous prostration, resulting from the wounds; that previous to the shooting, Thompson was a healthy man.
The plaintiff then offered, in evidence, an ordinance of the city of Alexandria, the substance of which is given in the statement of the case.
The defendant to maintain the issue on his part, offered himself as a witness, and testified as follows: That he, in company with James H. Smott, took the 7 o’clock local train on the 5th of March, 1877, for "Washington. At the train he saw Thompson. He and Smoot had been frequently in the habit of frequenting Thompson’s saloon to get oysters and something to drink. Thompson asked them where they were going, and on being told that they were going up to see the fireworks and would he down on the late train, said, “When you come down you will want something to eat, and I will he open for you.” On their return they started from the station for Thomp
James R. Smoot was next called for the defendant, and testified substantially as defendant had as to their movements and conversation on the night of the 5th of March, 1877, until they got to Thompson’s restaurant. On reaching it, and finding the front door closed, he turned and went up the alley, and entered by the side door, and told Thompson to open the door—Rev. was on the outside. Thompson started to open the door, and presently he heard the explosion of the pistol, and the exclamation from Thompson that he was shot. Presently the door was opened, and Harrison and Haingerfield entered. Saw that Thompson was shot, and went immediately out, as soon as the •door was opened. Soon afterwards Haingerfield overtook him, about thirty yards from the door.
I have thus copied into this opinion all the evidence, because the main question we have to consider is whether the verdict is warranted by the evidence.
This being all the evidence on both sides, the court .gave the following instructions, asked for by the plaintiff and defendant respectively:
The following instructions were given by the court at the instance of the plaintiff:
(1.) The court instructed the jury that every person who is present at the commission of a trespass, encouraging or inciting the same by words, gestures, looks or signs, or who in any way, or by any means, countenances or approves the same, is, in law, assumed to be an aider and abettor, and is liable as principal.
(2.) The jury are instructed by the court, that if they believe, from the evidence, that the said defendant, Reverdy J. Haingerfield, is liable in this action under the instructions to the plaintiff, in damages, then
And the defendant excepted. And then the court,, on motion of defendant, over the plaintiff’s objection,, gave the following instruction:
The court instructs the jury that in order to make the defendant, Daingerfield, liable in this action, they must be satisfied, from the evidence, that he either actively and forcibly aided and participated in the injury done to the plaintiff, or that he was present at the commission of the injury, aiding, encouraging and inciting the same; that the burden of proof is upon the plaintiff to satisfy them that defendant, Daingerfield, was thus present, aiding, encouraging and inciting the act; but mere presence, unconnected with other proofs of guilt, at the commission of the act, will not render him liable to the plaintiff
I am of opinion that the instructions given- hy the court below, correctly expound the law of the case, and that the instructions given at the instance of the defendant, were certainly very favorable to him. There being no error, therefore, in the instructions given hy the court, the only remaining question is, did the court err in refusing to set aside the verdict as contrary to the evidence?
This motion to set aside the verdict of the jury is based upon two grounds: First, that the evidence did not warrant the verdict against the defendant, Daingerfield, who did not actually commit the trespass,
As to the first point, the evidence conclusively shows that Daingerfield, with Harrison, was guilty of a trespass upon the premises of Thompson. They went to his house at a late hour of the night and demanded admittance after he had closed his house. Their conduct in insisting on admittance at that late hour, was in itself a trespass on his premises. And when he refused admittance, the firing of a pistol by Harrison was another unlawful act. And in that unlawful act, Daingerfield was a prominent actor. He prompted Harrison to fire the pistol which caused the fatal result. Harrison, who was drunk, asked him, “ Shall I give him a salute,” and Daingerfield replied, “Yes, give the damned black republican a salute,” and at the same time stepped back from between Harrison and the door. Immediately upon this, the pistol was fired by Harrison, and Thompson, who was opening the door, was wounded by the pistol shot.
Daingerfield, himself, admits that Harrison would not have fired the pistol, but for his direction, although he insists that when he told him to fire a salute, he expected him to fire into the air; and, to use his own language, he “ did not expect that he was d—d fool enough to shoot into the house.”
The willful firing of a pistol in the streets of a city, whether maliciously or not, is of itself an unlawful act, and the consequence of such unlawful act must be visited upon those who commit it or instigate it. Safety and protection to society require that both the actors and instigators of unlawful acts should be held to strict accountability for the consequences of their violation of law. It is no excuse or justification of Daingerfield to say that he did not fire the pistol which
He who commands or procures another to do an unlawful act, is as responsible as a trespasser as he who commits the trespass. Jordan v. Wyatt, 4 G-ratt. 151. And' although the act committed was done without malice, yet being unlawful, the party committing it or aiding or abetting in its commission, is responsible in damages to the party injured. Parsons v. Harper, 16 Gratt. 64" court="Va." date_filed="1860-07-15" href="https://app.midpage.ai/document/parsons-v-harper-8481663?utm_source=webapp" opinion_id="8481663">16 Gratt. 64.
It is earnestly insisted, however, by the learned counsel for the plaintiff in error (Daingerfield) that the evidence against him does not sustain the charge in the declaration, and in each count thereof, of assault and battery; that while such assault is proved against Harrison, who fired the pistol, it is not proved as to Daingerfield; that he committed no assault, hut simply advised and instigated an act which was in itself harmless, to-wit: “Fire a salute,” and that this act was not a trespass or assault as far as Daingerfield was concerned; that he did not direct Harrison to shoot Thompson, or to fire into his house, hut simply to “fire a. salute,” and that Harrison did another and different-act from the one which was advised and instigated by Daingerfield, and that the injury resulted from Harrison’s act done differently from the act directed by Daingerfield, and consequently Daingerfield cannot be held liable in this action.
The law is well settled that any person who is present at the commission of a trespass, encouraging or inciting the same by words, gestures, looks or signs, or who in any way or hy any means, countenances or approves the same, is in law deemed to be an aider and abettor, and liable as principal. 1 Hale P. G. 438; 3 Glreenlf. §§40, 41; 43 Missouri R. 206, and cases there cited.
There seems, indeed, to be no principle of law better settled, and for which numerous authorities may be cited if necessary, than this: that all persons who wrongfully contribute in any manner to the commission of a trespass, are responsible as principals, and each one is liable to the extent of the injury done.
The defendant, Daingerfield, being present, aiding and abetting and instigating Harrison, was equally guilty with him of an assault to the same degree as if he had fired the fatal shot himself.
I am further of opinion that the circuit court did not err in refusing to set aside the verdict on the ground that the damages were excessive.
The appellate court will not interfere with such a verdict unless it appears that the verdict is plainly extravagant and excessive.
We cannot say, upon the evidence before us, that the verdict is plainly excessive. The evidence shows that the injury received by the plaintiff caused the amputation of his leg, as well as great suffering and expense and permanent injury to his health. The jury, with all the facts before them, estimated the damages at the sum of $8,000, and we cannot say, upon the evidence certified, that the verdict is excessive under all the circumstances of the case. '
Upon the whole case, I am of opinion that there is no error in the judgment of the circuit court, and that the same should be affirmed.
The other judges concurred in the opinion of Christian, J.
Judgment affirmed.