35 Cal. 274 | Cal. | 1868
This is an action for assault and battery. The plaintiff testified as to the assault committed by the defendant, and stated, that, while making the assault, the defendant applied bad language to him. He was then asked to “state the exact language used by Maguire, the defendant, on that occasion.’’ The defendant objected on the ground of irrelevancy, and on the ground that, if the language was slanderous, it would form the subject matter of another distinct
We think the evidence admissible for the purpose indicated, but not as a ground of special damages, or to prove an independent cause of action.
The defendant, as a substantive, affirmative cause of action, set up, by way of a counterclaim, a libel published by the plaintiff concerning the defendant. After the plaintiff rested, the defendant offered to prove the libelous matter set up in the answer as a special defense and as a counterclaim. Plaintiff objected, on the ground that the facts set up constituted no justification, and were not admissible as matter in mitigation of damages, and on the further ground that the matter did not constitute a counterclaim within the meaning of the provisions of the Practice Act, which the defendant was authorized to set up, or prove, in this action. The Court sustained the objection as to the first two grounds, and excluded the evidence for the purpose of justification, or mitigation, of damages. But the Court was of opinion that the objection on the last ground should have been taken by demurrer, and as the plaintiff had .not demurred the objection was waived. The testimony was therefore admitted to establish the counterclaim, and plaintiff excepted to the ruling admitting the testimony. In this respect, also, we think the Court erred. The defendant was authorized by section forty-six to set up “a counterclaim constituting a defense.” Section forty-seven defines the term “ counterclaim ” in the following language: “ The counterclaim mentioned in the last section shall be one existing in favor of the defendant or plaintiff, and against a plaintiff or defendant between whom a several judgment might be had in the action, and arising out of one of the following causes of action : First—A cause of action arising out of the transaction set forth in the complaint or answer as the foundation of the plaintiff’s claim or defendant’s defense, or connected with the subject of the action. Second—In an action arising upon contract. Any other cause of action arising also upon
While the objection might have been taken by demurrer, we think it was not waived by failure to demur.
It is, however, insisted by respondent’s counsel that matters set up in the answer, if improperly admitted as evidence
The consequences may have been very different to the plaintiff. The terms, “ aggravation,” and “ mitigation of damages,” relate to the question of exemplary or punitive damages.
Damages, in an independent cause of action in favor of defendant against a plaintiff, are an entirely different matter, and the one is in no respect the equivalent of the other, either in law or as matter of fact, and the error committed cannot be compensated in the mode proposed by respondent.
The propriety of the ruling in excluding the evidence for the purpose of mitigating the damages is not before us on this appeal.
Judgment and order denying new trial reversed and new trial granted.