Action on behalf of Alonzo P. Morgan for damages for killing his father, Pressley Q. Morgan. On trial had, a verdict was returned for $400, and judgment accordingly.
The deceased, who was in the habit of carrying concealed weapons, and had a well established reputation for being a turbulent, quarrelsome and dangerous man, and was, it seems, somewhat the physical superior of Durfee, entered the law office of the latter, to whom his reputation as a dangerous man was well known, in an apparently friendly manner, though he had just previously made threats in a saloon of his purpose to do him a serious injury. After some conversation, the deceased, Morgan; commenced an altercation with Durfee relative to some business matter, showered upon him the most opprobrious epithets, repeatedly refused to leave the office when told to do so, saying, “he would’nt go out until he got ready,” and still continuing his vile abuse. Durfee, remarking to him, “ Morgan, I intend you shall go out,” pushed him backwards with his open hand, a step or two toward a safe which stood by the open door, when Morgan, seizing Dur
I.
Upon the .foregoing testimony, the court refused an instruction for the defendant that plaintiff was not entitled to recover. My opinion of this refusal is, that ^ was clearly erroneous; for it appears to me that few eases afford stronger grounds for successful resistance against an- action for damage than the present one. Durfee had the unquestionable right to defend his offiсe from ruthless intrusion, and his person against a battery then being inflicted, as -well as threatened death. His right was, therefore, of a two-fold nature, defense of his habitation and defense of his person ; and as coincident with that two-fold right he was invested by the first law of nature with authority to employ all the means within his reach, all the energies under his control, which the ap
In Hinchcliffe’s case, 1 Lewin C. C. 161; Cases Self-Defense, 125, upon an indictment for manslaughter, it appeared that the deceased and his servant insisted on placing corn in the prisoner’s barn, which she refused to allow. They exerted force and a scuffle ensued, in which the prisоner received a blow in the breast, whereupon she threw a-stone at the deceased and he fell down and was taken up dead. Ilolroyd, J., said : “ This case fails on two accounts. It is not proved that the death was caused by the blow, and if it had been, it appeal’s that deceased received it in an attempt to invade her barn against her will. She had a right to defend her barn, and to employ such force as was reasonably necessary for that purpose ; and she is not answerable for any unfortunatе accident that may have happened in so doing.” And under his lordship’s direction the prisoner was acquitted.
The principle which dominates that case, it would seem, ought to control this one, unless it can be said that favorable presumptions attend the fеlling of a man with a stone, but unfavorable, with a notarial seal. That case is also authority for the exercise of the power by a trial court seldom brought into requisition, however, owing to a pitiable and painful weakness in the dorsal region, of directing a vеrdict for either party where the facts are undisputed and the witnesses unimpeached, or where the verdict, if returned for the opposite party, would be set aside as against the law and evidence. This doctrinéis well established. Proffatton Jur. Tr.,§§ 851, 352, 354,and cases сited. This case falls, I think, clearly within the above mentioned rule; and that its circumstances would well have warranted the verdict for the plaintiff in being set aside as the result of either passion or prej udiee on the part of the triers of the fact; for it is quite clеar to my mind from the evidence that Durfee was either justifiable or excusable, since he
. In Pond v. The People,
II.
Making the concession, however, that the case ought to have been submitted to the jury for consideration in the usual way, still the judgment should be re-versed for errors otherwise, committed in instructing the jury. Therejwas error in the first instruction for plaintiff, because there was absolutely no evidence showing aggravating circumstances, nor that the blow “ was wantonly and cruelly inflicted in a spirit of hatred or ill-will, and without^reasonable provocation.” If there were no aggravating circumstances attending the death, then exemplary damages were not allowable. Cooley on Torts, 44, and cases cited; Whalen v. Centenary Church,
The second instruсtion for plaintiff was erroneous in that it held the defendant responsible, whether the blow or /^Aa + Vl UA»diUU. the fall, or both combined, caused Morgan’s Defendant’s act, if it was not a wanton, but a lawful one, that of resisting the force and violence of a hostile intruder, directed both against the person and possession of defendant, rendered him only responsible for the natural and' probable consequences of his act; and not answerable for any unforeseen and unfortunate result which may have attended that aсt. Hinehdiffés case, supra-, Railway Co. v. Kellogg,
IY.
Thе third instruction for the plaintiff was erroneous, because, while recognizing the right of defendant to-use a deadly weapon in defense" of his person . , . • against threatened danger ox great personal injury, even to the exteut of taking the life of his assailant, it utterly ignored and failed to give recognition to an equal right of defendant to do the same thing in defense of his oflice, which pro hae vice was as much his dwelling as the house ordinarily known by that appellation. And this right of defending one’s dwelling is in some sense superior to that of the defensе of his person; for in the latter case it is frequently the duty of the assaulted to flee,
And the instruction was also erroneous on another score. It told the jury, if there was reasonable ground to apprehend great personal injury from the deceased, “ аnd the defendant struck him with the seal to avoid such injury, and not in a spirit of malice or revenge, he was justifiable.” It will be observed that the term “malice” is not defined; the jury were, therefore, left to construe it as they would. It is a legal term, and “ understood to mean that general malignity and recklessness of the lives and personal safety of others which proceed from a heart void of a just sense of social duty and fatally bent on mischief.” 3 G-reenl. Ev., § 144. It would seem from the instruction that malice was regarded as the legal equivalent of revenge. This was an evident error; and even if properly regarded as meaning revenge, the instruction was erroneous as not having a particle of evidence to support it.
Y.
It is unnecessary to examine in extenso the instructions asked by defendant, since we have incidentally reviewеd most of those asked by him. The seventh instruction, however, asked on his behalf was properly refused ; for it told the jury that if Pressley G. Morgan could not, had he lived, have recovered against defendant, then plaintiff' could not do so. This, though true as a matter of law, had nothing to do with the case so far as concerned the jury.
As above indicated, the statute under which this action was brought authorizes, where there are circumstances of aggravation, the recovery ,of vindictive, exemplary or punitive damages; and when suck recovery is allowable, the pecuniary standing of defendant is an obviously proper subject of inquiry. But as there were no aggravating circumstances in this ease, and consequently no vindictive damages-recoverable, the opulence or poverty of defendant was not' properly admitted in evidence.
Judgment reversed and cause remanded.
Reversed.