59 Ga. App. 37 | Ga. Ct. App. | 1938
Adam A. Eobinson brought suit against Carl L. DeVaughn for damages alleged to have been sustained by reason of an illegal assault and battery made on him by the defendant. The petition, after certain portions had been stricken by a ruling .on demurrer, alleged that the families of the plaintiff and the defendant have been good friends all of their lives, and that there had never been the slightest friction between the plaintiff and the defendant prior to the alleged assault and battery; that the defendant married a niece of Mrs. A. C. Eichardson and A.' C. Eichardson by marriage; that plaintiff is a pharmacist and druggist, and worked for a number of years for his brother, J. H. Eobinson, deceased, who rented a store from A. C. Eichardson, and that plaintiff- knew the wife of the defendant well on account of her trading at said store before her marriage; that on a certain occasion the defendant came to the plaintiff and asked him to cease teasing the wife of defendant because it made her nervous and tore her up, and that plaintiff replied that if the defendant would keep his wife from teasing the plaintiff the plaintiff would assure him that there would be no response on his part; that just a short while later the brother of the plaintiff, Gilbert C. Eobinson, came to him and told him that the defendant had stated to him that plaintiff made cutting remarks to defendant’s wife and that defendant had requested G. C. Eobinson to see the plaintiff and have the teasing stopped; that thereafter the plaintiff did not speak to defendant’s wife for over four months, although they were often thrown together, it being his intention to give no offense in any way whatever; that on Thursday night, November 12, 1936, plaintiff and his wife were hosts at a social club at Montezuma, of which club the defendant and his wife were also members, and that on that occasion every vestige of any strain between them seemed to be absent and there were hospitality and pleasantness and assurance of friend
The defendant filed a plea and answer denying the substantial allegations of the petition, further alleging, omitting certain portions stricken on demurrer, that after leaving the A. & P. store, as referred to in the petition, and as his wife turned her car around and was driving towards her home the plaintiff placed himself in the middle of Dooly Street where he knew she would be forced to pass in going to her home, and that, after making a whistling sound to attract her attention, hollered out in a rather loud tone “Hello, Otto;” that defendant’s wife immediately parked her car, and as she approached, the plaintiff he again.spoke to her and she told him that she was going to report to her husband the remark he had made, plaintiff replying that she would make a serious mistake in doing so; that his wife came to him and reported that the plaintiff had been annoying her; that she was crying as she approached, and that, although he had on numerous occasions admonished the plaintiff not to annoy his wife, he saw the plaintiff immediately
The defendant amended his plea and answer, after the introduction of evidence, alleging that after his marriage during the year 1930 he returned with his bride to Montezuma and made their home there, and that they have lived there continuously since : that soon after their arrival in Montezuma a friendship was formed between the plaintiff and his wife and defendant and his wife, and that for some time this friendship between the two families grew stronger and stronger and their visits became more frequent; that this friendship was thoroughly enjoyed until the defendant’s wife was forced by circumstances hereinafter set out to observe that the plaintiff was undertaking to improperly construe the friendship between himself and the defendant’s wife, and that the observations of the defendant’s wife forced her to the conclusion that his friendship was of questionable motive; that on one occasion the plaintiff undertook to kiss the 'defendant’s wife while she was in the drug store where the plaintiff worked; that at first she did not treat the incident with the seriousness which she afterwards learned it involved, and that, just as soon as she questioned the plaintiff’s motives of the friendship which he professed to have, she abandoned his company and did not desire any further social relation with him; that it came to the knowledge o£ the defendant’s wife that there had been some criticism regarding the attention which the said Eobinson was showing her, and that at the very first intimation of any unjust or unfair criticism she went to the home of the plaintiff’s wife and informed her that if there had been any gossip or criticism of any conduct on the part of her and the plaintiff it was wholly unfounded, without any basis on her part, and that so far as she was concerned the social relations existing between her and the plaintiff would be severed; that three and a half years or four years previously the plaintiff committed battery upon the de
The plaintiff demurred to this amendment on several grounds, all of which were overruled by the court, and the plaintiff filed and had certified his exceptions pendente lite. The jury returned a verdict in favor of the defendant. The plaintiff filed a motion for new trial on the general grounds and several special grounds hereinafter referred to. To the ruling of the court on the plaintiff’s demurrer to the original plea and answer of the defendant, to the ruling of the court sustaining certain grounds of the defendant’s demurrer to the petition, and to the ruling of the court on the plaintiff’s demurrer to the defendant’s amendment to his plea and answer, the plaintiff filed and had certified exceptions pendente lite, and error is assigned on all the grounds thereof, as well as on the judgment of the court overruling the plaintiff’s motion for new trial.
The evidence introduced on the trial of the case was given in much detail as to events preceding the assault and battery complained of, but for the purpose of the decision on the merits of the case may be substantially condensed as follows: The families of the plaintiff and defendant were close friends. Eobinson, the plaintiff, worked in a drug store as prescription clerk. The defendant’s wife often had occasion to go to the store on business, and, on account of the relations between the parties, the defendant often left her there while he attended a picture show. Occasionally she would drive the plaintiff to his home in her automobile. Sometimes the defendant was present and sometimes not. There was evidence that the plaintiff was very desirous of being in her presence. lie testified that his association with her was purely platonic, that he had known her since she was a girl, and that his interest was genuine and without design. But in time she became suspicious of his attitude and requested that she be let alone, and while she did not in the outset report to her husband his acts, which she termed annoying, and which she testified came under public notice, she finally did so. There was evidence that, in order to be about her, the plaintiff often followed her into the stores of Montezuma which she had entered for shopping purposes. On one occasion, according to her testimony, he kissed her while she was present in the drug store where the plaintiff was employed, and while she testi
The plaintiff testified: “Something happened to me on Friday morning, the 13th day of November, last year. I was struck and beat up by Carl DeVaughn Jr. I did absolutely nothing to make him strike and beat me up. I did not try to hit him. I told him we would go in the store, and if he had anything to say to me I would like for him to say it in the presence of his wife so she could hear it all. That is all I said to him. I gave him no offense at all. He was in his shirt sleeves. I don’t know how many times he hit me. I was not expecting to be hit, and the first lick dazed me and I didn’t know anything else about what happened. . . I did not see his hands. They were in his pockets when I stepped up to him, and I thought he was going in the store where his wife was. . . My eyesight is not good. I have naturally lost one eye, the left eye. I have no vision out of that at all. My right eye is weak. I wear my glasses in the store practically all the time, but when I come outside they bother me, and I take them off in the glare and carry them in my hand. That is a habit of mine. I had them in my hand that day. I had them in my right hand, and had them in my hand since coming from further up the street, and had them hooked where I would not drop them, hooked glasses. They could not fall, and I carry them that way a good part of the time. . . If I had been expecting any trouble with DeVaughn when he met me in the street I would have had something in my hand besides glasses. . . It had been around thirty minutes since Mrs. DeVaughn had told me. that she was going to report to him but she did not say I was bothering her. . . ' I said ‘Hello, Otto.’ That was not her name. The night before we had a dance. She attended and I attended, and I danced with her two or three times, and it was a continuation of the pleasantries we had the night before. She knew I did not mean any harm in calling her ‘Otto,’ I told her so at the time. I don’t know why I said it. That is one of the things I can’t explain. I don’t expect I have ever called any other married woman by that particular name. I did not holler out to her. She was passing in the car and I said ‘Hello, Otto/ and held out my hand. She never asked me not to speak to her any more. I am positive about that. . . She told me she was going to tell Carl Jr. what I said to her, and I
The defendant testified: “1 came doAvn toAAui about six-thirty or seven o’clock the folloAving morning, and had sold a gasoline engine to John McKenzie, and I had robbed that engine- to get some parts off of it to get some more, and John said he Avas going to send his truck in to get that engine that morning, and the parts came by express, and I Avent upstairs to put them on the engine, and she came in crying, calling me, and I came doAvnstairs, and she says ‘Carl, you have got to go see Adam,’ and I says ‘You be quiet, I Avill go see him,’ and I went in the drug store and walked
Mrs. Carl De Vaughn Jr., wife of the defendant, testified as to the events immediately preceding the assault and battery: “On the morning after this seven o’clock meeting [at the club] I went to town. . . Tie [Eobinson] saw me drive up and walk in the A. & P. store and he walked in. ITe did not say anything to me in the grocery store, but when I walked out he had been down to Dr. Walker’s. He got in the middle of the street, and when I got by him then he hollered ‘Hello, Otto,’ to me. I immediately pulled to the curb and called him to me the second time. I met him on the railroad track, and I says ‘All right, I have taken the last thing I am going to take. I am going to tell Carl, and you know what he is going to do to you if he can. He is going to half-kill you,’ and he says ‘All right, you are going to be sorry.’ I went in the hardware store and called Carl and told him. When I went in the store and called my husband, naturally I was very much upset. I don’t recall any of the occurrences that immediately happened. Mr. Eobinson was not in the A. & P. store when I went in there. They have a counter that runs right in front of the window, and I was standing there picking out the oranges I was going to buy, picked them out myself. I stood where I was after he came in. Otto Liggon was waiting on me. I have no middle name. I never had any one else to call me Otto in my life. . . When I drove down the street I had the window up. It was a little bit cool, a cool morning, and I had the window up, and to attract my attention, because I never looked his way, he kind of whistled. I could hear the whistle all right. I guess he whistled with his mouth. It sounded like it. It was not what attracted my attention to him at that time. I saw him step out in the street. He
The assault and battery of which complaint is made is admitted by the defendant, but he defends on the ground that his act was justified by what he contends to be opprobrious words used by the plaintiff at the time of the assault and batterjr. Before ruling on the general grounds of the motion for new trial certain principles of law may appropriately be set forth. By statute, now codified as Code, § 26-1409, it was provided: “On the trial of an indictment for an assault, or an assault and battery, the defendant may give in evidence to the jury any opprobrious words, or abusive language, used by the prosecutor, or person assaulted or beaten; and such words and language may or may not amount to a justification, according to the nature and extent of the battery, all of which shall be determined by the jury.” Code § 105-1801 provides: “In every case of tort, if the defendant was authorized by law to do the act complained of, he may plead the same as a justification; . It was early held that opprobrious words must be such as are uttered in the presence of the assaulting party and “which, in their nature, . . are supposed to arouse the passions, and justify, under certain circumstances to be adjudged by the jury, instant and appropriate resentment, not disproportioned to the provocation.” Mitchell v. State, 41 Ga. 527. See also Berry v. State, 105 Ga. 683 (2) (31 S. E. 592); Haygood v. State, 137 Ga. 168 (73 S. E. 81); Cole v. State, 2 Ga. App. 734 (59 S. E. 24); Cowart v. State, 9 Ga. App. 169 (70 S. E. 891); Haygood v. State, 10 Ga. App. 394 (73 S. E. 423). This same principle applies in civil cases. East Tenn., Va. & Ga. Ry. Co. v. Fleetwood, 90 Ga. 23 (3) (15 S. E. 778); Mason v. Nashville &c. Railway Co., 135 Ga. 741, 757 (70
Applying the above principles of law to the facts shown by the record in the present case, a finding was demanded, as a matter of law, that the defendant was not justified in the assault and battery made upon the plaintiff. Notwithstanding any improper remarks that may have been made by the plaintiff to the wife of the defendant, the evidence clearly shows that at the time, of such' assault and battery the plaintiff used no language, either as to the defendant or his wife, of an opprobrious nature. The pleadings and the testimony of the defendant are not without inconsistencies. The general purport of his attempted justification was that in as
But in the brief of counsel for the defendant in error the main defense seems to be that the cause of the assault and battery was really what counsel calls the opprobrium implied in the suggestion of the plaintiff that he and the defendant go into the latter’s store, where the wife of the defendant was presumed by the plaintiff to he, and in fact was, and talk the matter over in her presence. We gather from the argument of counsel that the opprobrium, as viewed by the defendant, would consist in the plaintiff’s attempt to thus pay further attention or cause annoyance to the wife, notwithstanding the defendant’s past warnings that she should be let alone. But however objectionable to the defendant, or inappropriate, or even indiscreet, the suggestion might be termed by a consideration of the propriety of relieving the wife against the plaintiff’s presence, the suggestion certainly could not in reason be regarded as opprobrious. There was nothing in the suggestion to indicate to any open mind that the plaintiff proposed to show towards the wife any attention that had been discouraged and remonstrated against.
It is further contended that while words may not themselves be opprobrious the circumstances under which they are uttered may make them so, and we are cited to the. case of Tucker v. Walters, 78 Ga. 232 (2 S. E. 689), in support of the contention. In that case Tucker stated to Walters that a bill had been rendered to Walters and that he had not disputed it, to which Walters replied, “It is not so,” and Tucker repeated that it was. Walters rejoined that it was not so, whereupon Tucker struck him a blow upon the head. The court said that a jury question was presented as to whether the words were opprobrious, because they might be used in such a manner as to imply that Tucker had stated a falsehood or told a lie, under which circumstances the words would be opprobrious or abusive. While the court stated a correct principle of law, that case is readily distinguishable on its facts. There is no contention in the present case that the plaintiff, by his language at the time of the assault and battery, reflected on the defendant or his wife or abused either in any way. It is contended only that the suggestion that the plaintiff and the defendant go in the store and discuss the matter amounted to an opprobrium, which, as we have stated, can not be upheld. It follows from what has been said above that the verdict in favor of the defendant was not authorized. However, in a case where the defendant fails to show justification for an assault and battery, but where it appears that “the injury is small, or the mitigating circumstances are strong, nominal damages only are given.” Code, § 105-2001.
One special ground of the motion for new trial complains of a portion of the charge of the court which, in effect, instructed the jury that if opprobrious words were used towards the wife the defendant would be justified in the assault and battery upon the plain
Another special ground complains of a portion of the charge of the court which, in effect, instructed the jury that if they believed that prior to the time of the assault and battery the plaintiff had frequently indulged in such conduct and acts towards and addressed to the wife remarks which were annoying and offensive to her, and affected injuriously in the community her reputation for ■fidelity and chastity, or were calculated to produce such an effect, and if the jury believed such conduct, acts, and remarks had been continuously in operation, and that the defendant and his wife had admonished the plaintiff to refrain therefrom, and that he ignored the admonitions and continued such acts and conduct, and that if the jury believed that at the time of the assault and battery a recurrence thereof was imminent and impending, and that to repel the same the defendant inflicted the assault and battery, and in doing so was acting under the necessity, or reasonably apparent necessity, of repelling or deterring an imminent and impending
The sixth ground of the motion for new trial is, in effect, merely an elaboration of the other grounds and is controlled by the ruling in the first division of this opinion.
(a) Error is assigned on the ruling of the court in striking on demurrer from plaintiff’s petition the allegation that the defendant’s wife contracted a serious malady in connection Avith which she asked the help and advice of plaintiff several years previous to the assault and battery complained of, it being contended that such allegation was proper to illustrate the manner and circumstances under Avbich the plaintiff began his association Avith the defendant’s Avife in friendship. The allegation Avas not germane or relevant to the plaintiff’s cause of action, and the court did not err in striking the same.
Error is also assigned on the ruling of the court in striking from the petition on demurrer certain allegations as to unpleasant colloquies between the defendant’s wife and the plaintiff in regard to extraneous matters in which the defendant took no part, which occurred long before the assault and battery, and which did not, as contended by plaintiff in error, constitute anything that might properly be called a permissive inducement in pleadings in a matter between the plaintiff and the defendant. The court properly struck the allegations from the petition.
Nor did the court err in striking, on demurrer, from the
The court also properly struck from the petition as hearsay the allegation that the '“plaintiff was informed that the defendant continued to hit him.”
The court did not err in overruling the plaintiff’s demurrers to the original answer of the defendant. The contention of the plaintiff is that the words '“Hello, Otto,” which the answer alleged the plaintiff used towards the wife of the defendant, were meaningless in themselves and imported no opprobrium, and that the rest of the allegations should have been stricken because they related to occurrences prior to the assault and battery and outside of the presence of the defendant and constituted no justification. While, as we have held, the facts referred to would not afford justification for the assault and battery, it was proper for the defendant to plead and prove them for consideration by the jury on the question of mitigation of damages, and without setting out in detail all of the allegations demurred to we think it sufficient to say that the grounds of the demurrer were properly overruled.
The amendment filed by the defendant, as set out in the statement of the case hereinbefore, was attacked by general and special demurrers, but it is not deemed necessary or profitable to enter into any detailed discussion concerning them. The amendment, apparently offered and treated as a plea of justification, was allowed after evidence in substantial conformity therewith had been introduced without objection. The court properly overruled the grounds of the demurrer thereto, inasmuch as the allegations, while not showing facts justifying the assault and battery, did show facts which, being proved, could be considered by the jury in mitigation of damages. The ground of the demurrer that the amendment was not allowable because not sworn to is without merit. The allowance of an amendment without an affidavit in accordance with Code, § 81-1310, invoked by the plaintiff in error, is in the discretion of the trial judge, and no abuse of discretion appears in the
The court erred in overruling the motion for new trial for reasons shown above.
Judgment reversed.