82 W. Va. 270 | W. Va. | 1918
The plaintiff in this case purchased a ticket from the defendant railway company’s agent at Pocahontas, Virginia, entitling him to passage on one of its passenger trains to
It cannot be doubted that the evidence fully justified the .jury in finding a verdict in favor of the plaintiff. It is insisted that the court should have directed such a verdict inasmuch as the defendants admit the assault committed on the plaintiff, but attempt to justify the same as an act of self defense. It is contended that there was no plea filed which would allow evidence to be introduced tending to show that the conductor acted in self-defense, or justifying the instruc-itions which the court gave upon this theory of the ease. It 'does not appear from the record that any such plea of justi-fication is filed, and it seems to be very well established that in a civil action for assault and battery, in order for the de-. ' fendant to justify upon the ground of self-defense, the same . must be specially pleaded. Shires v. Boggess, 68 W. Va. 137; Hunt v. DiBacco, 69 V. Va. 449; 2 Enc. of Pleading and Practice, 862; 5 C. J. 655. It may be true that even where the only plea is one of not guilty it is proper to admit evidence that the defendant acted in self-defense, for the pur.pose of mitigating damages, but such evidence cannot go to 'the extent of justifying an assault, unless a special plea is filed relying thereon as a justification.
Upon the trial of the case the defendant offered, but ivas 'not permitted to prove, that after this occurrence a warrant was issued for the plaintiff by a justice of the peace charging him with an assault and battery upon Davis, the conductor; that he had been tried before the justice upon that warrant •and convicted and fined, from which judgment of conviction ihe had appealed to the criminal court -of Mercer county,
' On the motion of the plaintiff the court instructed the jury as follows: “The court instructs the jury that if they find for the plaintiff, then in estimating the damages to which he is entitled they may take into consideration the physical injury inflicted upon plaintiff, his physical and mental pain and suffering, shame and humiliation, the damage to his glasses from being broken, the amounts expended by him for hospital fees and doctor’s fees, loss of time; and fix his damages at such sum as will fully compensate him for the injury inflicted upon him. And in addition to these compensatory
The defendants also argue that under'the evidence this is not a proper case for the award of punitive damages. We cannot agree with this contention. If the plaintiff's statement of the case is correct, the jury were entirely justified in coming to the conclusion that there was a wanton and wil
It follows from what we have said that the judgment of the circuit court of Mercer county complained of will be reversed, the verdict of the jury'- set aside, and the cause remanded for a new trial.
Reversed and remanded.