131 Ky. 312 | Ky. Ct. App. | 1909
Reversing.
Plaintiff, S. E. Renfro, instituted this action against the defendant, E. P. Barlow, to recover damages for assault and battery. The petition charges that the defendant unlawfully and without any provocation on the part of plaintiff, assaulted, beat, and bruised plaintiff about the face, head, eyes, and other parts of his body, with a piece of iron, steel, or other hard substance. The defendant answered in three paragraphs. In the first paragraph he denied that he unlawfully, wrongfully, and without provocation assaulted the plaintiff; in the second paragraph he pleaded son assault demesne; and in the third paragraph a matter of provocation under the- act approved May 16, 1906. The ease was submitted to the jury, and a verdict rendered in favor of the defendant. From the judgment based thereon, the plaintiff appeals.
According to the testimony for the plaintiff, the defendant, on the 3d day of August, 1907, came up to plaintiff where he was seated in his buggy, at Cave City, and said to him: “I hear or understand you said you could whip me. ’ ’ Plaintiff replied that he believed he could the day the defendant poisoned his dog; that he was mad then, but had gotten over it. Plaintiff then told the defendant that, if there was any fighting to be done, he (defendant) would have to do it. They then began to discuss the poisoning of plaintiff’s dog. Defendant said: “Yes, I did poison your dog, and if any of you d- s--- b--don’t like it, how are you going to help yourselves?” The defendant then struck plaintiff with an iron-ring in the face and oh the head; struck plaintiff again, and jerked him out
The court instructed the jury as follows:
“ (1) The court instructs the jury that if they shall believe from the evidence that the defendant, Barlow, on or about the 3d day of August, 1907, unlawfully and maliciously assaulted, beat, or brnised the plaintiff, Renfro, on or about his face or head, or other parts of his body, with an iron or steel lap ring, or kicked him on or about his person, they should find for the plaintiff such compensatory damages, if any, as in their judgment will fairly compensate him for the injuries, if any, received by him at the hands of*317 said defendant, not to exceed, however, the sum •claimed in the petition, to-wit, $5,000.
“ (2) The court instructs the jury that if they shall find for the plaintiff under instruction No. .1, in any sum or amount whatever, by way of compensatory damages, and shall believe from the evidence that the alleged assault was wanton, or without provocation upon the part of the plaintiff, then, they are not restricted in their finding, if any, to the compensatory damages, if any, sustained by the plaintiff; but, in addition thereto, they may find for the plaintiff such exemplary damages, if any, as will in their judgment be a just and reasonable punishment for the assault, if any, made by the defendant on the plaintiff. But in no event shall the finding, if any, in both compensatory and exemplary damages exceed the said sum of $5,000.
“(3) The court instructs the jury that the expression of the term ‘compensatory damages,’ as used in these instructions, means actual damages; and that the expression or term ‘exemplary damages,’ as used in these instructions, means damages by way of punishment.
“ (4) The court' instructs the jury that if they shall believe from the evidence that at the time the defendant, E. P. Barlow, assaulted the plaintiff, Renfro, if he did assault him, the defendant, Barlow, in good faith believed, that he was then in danger of am assault about to be inflicted upon him by the plaintiff, Renfro, the defendant had the right to use such force as was necessary, and appeared to him, the defendant, in the exercise of a reasonable judgment, to be necessary to repel the assault and save himself. Nor is it necessary that the jury should believe that such damages to Barlow were actual or real. It was*318 énough. if it appeared to him, in the exercise of good faith," to be real.
“-(5) Although the jury may believe from the evidence that the defendant, Barlow, did assault the plaintiff, Renfro, and that when the defendant did so, if he did, he, the defendant, did not in good faith believe, and have reasonable grounds to believe, that he was then in danger of an assault about to be inflicted upon him by the plaintiff, still, if the jury shall believe from the evidence that the plaintiff gave to the defendant such provocation to cause the defendant to assault him (the plaintiff), if he did assault him, as would cause an ordinarily prudent person, under like or similar circumstances, to assault the plaintiff, the jury can not find for plaintiff anything by way of punitive damages, and the jury may consider such provocation, if any, in estimating compensatory damages, if any, they find for the plaintiff.
“ (6) Unless the jury believe from the evidence that the defendant, on or about the 3d day of August, 1907, unlawfully or maliciously assaulted, beat, or bruised the plaintiff, Renfro, on or about his face or head, or other parts of his body, with an iron or steel lap ring, or he kicked him on or about his person, they must find for the defendant. ’ ’
It is earnestly insisted by counsel for appellant that the defendant below was not entitled to an instruction on self-defense; that, according to his own testimony, he began the assault by striking the plaintiff. A careful reading of the entire testimony of the defendant, however, leads us to believe that he intended to convey to the jury the impression that the plaintiff drew back and endeavored to get his knife before he assaulted the plaintiff. We are of the opinion, however, that tbe
It is next insisted that instruction No. 5 is erroneous, in that the alleged cause of provocation took place two weeks prior to the assault; it being insisted by counsel that it was not contemplated by the act of 1906 to permit evidence of provocation that took place so long before the assault to be given to the jury. In support of this contention, we are referred to all the •old cases holding that the defendant could not give in evidence in mitigation of damages the acts or declarations of the plaintiff at a different time, or any antecedent acts which were not fairly to be considered a part of one and the same transactions, though they may have been ever so irritating or provoking. Rochester v. Anderson, 1 Bibb 428; Dugan v. Godsey, 2 A. K. Marsh. 352; Slater v. Sherman, 5 Bush 306; Carson v. Singleton, 65 S. W. 821, 23 Ky. Law Rep. 1626. In our opinion the instruction is not erroneous for the reason stated. The act plainly provides that the defendant shall have the right to plead, as a defense to the claim of punitive damages, and to introduce in evidence in mitigation of damages, any matter of provocation which preceded the assault or assault and battery. All along, it had been the rule that opprobious epithets or insulting language used at the time of the assault were admissible. Chandler v.
The act under which instruction No. 5 was given (Acts, 1906, p. 262, c. 32) is as follows: “In all civil actions for damages inflicted' by an assault, or by an assault and battery, the defendant shall have the right to plead as a defense to the claim for punitive damages, and to introduce in evidence in mitigation of damages, any matter of provocation which preceded the assault or assault and battery. If the matter of provocation prompted the assault or assault and battery, and was of a nature as to cause a person of ’ordinary prudence and judgment to take the action taken by the defendant.” Prior to the enactment of this act, this court in the case of Carson v. Singleton, supra, said: “Whatever may be the rule in other jurisdictions as to the admissibility of testimony of this character either as a part of the res gestae or in mitigation of appellee’s liability for punitive damages, the question is not an open one in this State. In 1809, in an action of trespass, assault, and battery, under a plea of not guilty, the plaintiff proved that, on the day of the assault and battery, the defendant, as he was going to the place where it was committed,
It is evident that the act of March, 1906, was enacted for the purpose of changing the rule announced in the above case, and to make competent in mitigation of punitive damages matters of provocation occurring prior to the assault and battery. Furthermore, the very language of the act, itself, Indicates that this was the purpose of the Legislature. By the terms of the act the defendant is given the right to plead, as a defense to the claim of punitive damages, and to introduce in évidence in mitigation of damages, any matter of provocation which preceded the assault,
It is next insisted that the court erred in refusing to permit plaintiff to prove by other witnesses that it was Noah Atkinson who made the insulting remarks in reference to the defendant on the occasion when it is claimed that the plaintiff made said remarks. We are inclined to the opinion that this evidence was admissible on the question of identity of the person making the remarks. Evidence going to show that at the same time and place another person made the remarks attributed to plaintiff would tend, to some extent, at least, to support plainti’s claim that he did not make the remarks in question.
Upon the next trial of this case, the court will instruct the jury as follows:
“(1) If you believe from the evidence that on or about the 3d day of August, 1907, the defendant, Barlow, not in his necessary, or to him apparent necessary, self-defense, as defined in instruction No. 2, assaulted, beat, or bruised plaintiff, and thereby injured him, you will find for plaintiff.
“(2) If you believe from the evidence that, at the*323 time defendant assaulted the plaintiff, the defendant in good faith believed, and had reasonable grounds to believe, that the defendant was then and there in danger of bodily harm about to be inflicted upon him by the plaintiff, and that the defendant used no more force than was necessary, or appeared to him in the exercise of a reasonable judgment to be necessary, to protect himself from injury at the hands of plaintiff, you will find for the defendant, unless you believe that defendant brought on the difficulty by first striking plaintiff or assaulting him with a lap ring, in which event, you can not find for defendant on the ground of self-defense.
“(3)If you find for plaintiff, you may award him such sum by way of compensatory damages, not exceeding $5,000, as you believe from the evidence will ■fairly compensate him for any physical or mental suffering which he endured as the necessary result of his injuries, if any.
‘ ‘ (4) If you believe that defendant, not in his necessary, or to him apparent necessary, self-defense, assaulted, bruised, or injured plaintiff, and further believe that defendant wantonly and maliciously assaulted, bruised, or injured plaintiff, you may, in addition to compensatory damages, award plaintiff punitive damages, not exceeding in all the sum of $5,000. If, however, you believe from the evidence that plaintiff gave to the defendant such provocation to assault and bruise plaintiff- as would cause an ordinarily prudent man under like or similar circumstances so to assault and bruise the plaintiff, and that such provocation, if any, did prompt defendant to assault plaintiff, you may consider such provocation, if any, in mitigation of the punitive damages, if any, which you may find for plaintiff.”