Berkner v. Dannenberg
| Decision Date | 10 January 1903 |
| Parties | BERKNER v. DANNENBERG et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Inasmuch as the answers filed deny the commission of an assault and battery of the kind and character alleged in the petition, and for which the plaintiff sought to recover damages, they cannot properly be treated as pleas of justification, although they admit a battery of a minor character, and aver, as a justification of the battery as admitted, certain opprobrious words and abusive language spoken by the plaintiff to one of the defendants. But treating the answers as pleas in extenuation and mitigation of damages, the trial judge committed no error in overruling a demurrer to the same.
2. The provision of our statute that opprobrious words or abusive language may justify an assault, or an assault and battery is applicable only on the trial of one who has been indicted for either of these offenses; and while, on the trial of a civil action brought by one person against another to recover damages for an assault and battery alleged to have been committed on the plaintiff by the defendants, any such words and language may properly go to the jury, they are admissible only in extenuation or mitigation of damages, and not as a justification. Fish, J., dissenting.
3. In an action to recover damages resulting from an assault and battery committed on the plaintiff, if there be aggravating circumstances either in the act or intention, punitive or exemplary damages may be recovered.
4. In order to entitle the defendant to the opening and conclusion before the jury under a plea of justification filed in an action to recover damages for the commission of a tort, the plea must admit the commission of the acts charged in the petition as they are therein alleged; and a plea which only partially admits the commission of the acts charged is not a plea of justification, and does not entitle the defendant to the opening and conclusion of the argument.
Error from superior court, Bibb county; W. H. Felton, Jr., Judge.
Action by H. J. Berkner against Joseph Dannenberg and others. Judgment for defendants, and plaintiff brings error. Reversed.
Arthur L. Dasher, for plaintiff in error.
Hardeman Davis, Turner & Jones, for defendants in error.
An action to recover damages on the part of Berkner for personal injuries which he alleged the defendants had inflicted on him was tried, and there was a verdict for the defendants.
1. In his bill of exceptions the plaintiff in error alleges that the trial judge erred in overruling the demurrer which he filed to the pleas of the defendants. Evidently the main purpose of the demurrer was to call in question the sufficiency of the defendants' answers as pleas of justification. We are of the opinion that the answers filed cannot, in law, be treated as pleas of justification. The action brought by the plaintiff sought a recovery in damages for a tort, and Civ. Code, § 3891, declares that in every case of a tort, if the defendant was authorized by law to do the act complained of, he may plead the same as a justification. The test, therefore, to which the answers are to be subjected to determine whether or not they can properly be classed as pleas of justification, is: First. Do the answers admit the battery as set out in the petition? Second. Do the matters set up as a reason for committing the battery, in law, authorize the defendants to commit the battery? If the pleas be wanting in either of these particulars, they are not pleas of justification. An examination of the answers discloses that they do not admit the assault and battery as charged in the petition. In order to make a plea one of justification, it must plainly admit that the act as charged in the petition was committed by the defendant. Under such a plea there can be no issue between the parties as to whether the acts charged were committed by the defendant, but the only issue raised is whether the defendant was in law justified in doing the acts for which the plaintiff seeks redress. The answers in this case, therefore, cannot be considered as pleas of justification. By Civ. Code, § 3892, it is declared that what does not amount to a justification may be pleaded in extenuation and mitigation of damages; and, while much of the matter contained in the answers could well have been omitted, we are not aware of any reason why the answers should have been stricken, out, on the contrary, are of opinion that the matter which they contained could properly be pleaded in extenuation or mitigation of damages under the code section just cited. Those grounds of the demurrer not directed to the answers as pleas of justification do not raise issues of sufficient importance to cause the pleas to be stricken. Although much of the language and many of the expressions contained in the answers to which these grounds of the demurrer are directed are objectionable, and add no weight to the material averments of the plea, and should not have been set out, yet they can properly be treated as mere surplusage.
2. The motion for a new trial contains 35 grounds. A careful examination of each of these in connection with the brief of evidence and the charge given to the jury has resulted in the conclusion that the trial judge erred in overruling the motion for a new trial. The particular causes for a reversal of the judgment will be hereafter specifically set forth. In the meantime, however, a number of immaterial errors, set out in some of the grounds of the motion other than those particularly mentioned, appear to have been committed on the trial; but they are not of sufficient importance of themselves to work a new trial. These errors are found set out in the first, second, eighteenth, and other grounds which are indicated in what will be hereafter said. The grounds not thus indicated or specifically set out do not show the commission of error. In the fourteenth ground of the motion error is assigned to the action of the court in instructing the jury as follows: "It is a rule of law in this state, laid down in the Code, that in all cases of assault and battery [and the charge in this case on the part of the plaintiff is that the defendants did commit an assault and battery upon him, and the plea of the defendants admits that an assault and battery was committed on the plaintiff] the law permits, wherever an assault and battery is made, and an effort is made on the part of the person inflicting that assault and battery to justify--that is to say, to show that the person who inflicted the assault and battery was justified in that battery--the law says that the jury trying the case may have shown to them by the testimony any opprobrious words used by the person beaten to the person beating, by the person who inflicts the injury or battery or beating, in order that the jury trying the case may pass upon the question of whether or not the battery inflicted was disproportionate to the opprobrious words, if they were insulting words and opprobrious words, whether the battery inflicted was disproportionate to the words used." The provisions of our Code to which undoubtedly the trial judge had reference in this part of his charge are to be found in Pen. Code, § 103, which is in the following language: "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." In terms the provisions of this section are only applicable in the trial of one who is charged with the offense of assault, or assault and battery, and they have no applicability to a civil case, so far as they may be construed to allow the jury to find opprobrious words to be such a justification for an assault and battery as to prevent a recovery by the plaintiff. On the contrary, our Civil Code, § 3826, but declares the doctrine of the common law when it lays down the rule that "a physical injury done to another gives a right of action, whatever may be the intention of the actor, unless he is justified under some rule of law." The rule for measuring damages in such an action is stated (Civ. Code, § 3905) in these words: "If the injury be small, or the mitigating circumstances be strong, nominal damages only are given." The suit here is to recover damages for physical injuries. The plaintiff is entitled, when he shows that these injuries were inflicted by the defendant, to recover nominal damages at least, unless the defendant on his part shows that he was justified, under the law, in the commission of the assault or battery, or both. As we have said, the rule that opprobrious words may, in the estimation of the jury, afford a justification of an assault and battery, is confined to the trial of one who is charged on the criminal side of the court with assault and battery as an offense against the laws of the state. At common law opprobrious words would never justify an assault or battery (Berry v. State, 105 Ga. 683, 31 S.E. 592), and we have no statute which makes such words a justification in a civil action. It must, therefore, be ruled that the charge complained of was error. While this is true, evidence of opprobrious words or abusive language may nevertheless properly go to the jury, not as proof of justification, but to be considered in extenuation and mitigation of damages which must be awarded, except in cases where the acts admitted or proved are justified. We know of no rule of law, when a physical injury is shown to have been intentionally inflicted,...
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