Daingerfield v. Thompson
| Decision Date | 08 April 1880 |
| Citation | 74 Va. 136 |
| Parties | DAINGERFIELD v. THOMPSON. |
| Court | Virginia Supreme Court |
In an action of trespass on the case, the declaration charged the defendant with an assault in various forms, one of which was by a wounding from a pistol shot, so as to cause the amputation of the leg of the plaintiff; and also set out an ordinance of the city in which the wound was inflicted prohibiting the discharge of firearms therein; also alleging the continued sickness, disorder, and suffering in consequence of said would; the expense, medical attendance and other costs, consequent on said wound, which, plaintiff claimed, amounted to a large sum, and for which he claimed damages amounting to $10,000. On demurrer, HELD:
1. The declaration alleges a case of trespass at common law, and under our statute (C. V., 1873, ch. 145, § 6) trespass on the case will lie, wherever trespass will, and is sufficient.
2. Where the record contains only a certificate of the evidence and not of the facts proved, the appellate court will only consider the evidence introduced by the party prevailing, and will not reverse the judgment unless, after rejecting all the parol evidence of the exceptor, and giving full faith and credit to that of the adverse party, the judgment of the court below still appears to be wrong.
3. Whilst the mere presence of a person at the commission of a trespass will not make him liable for its consequences, yet every one present encouraging or inciting a trespass by words, gestures, looks or signs, or who, in any way, or by any means, countenances, or approves the same, is in law, assumed to be an aider and abettor, and is liable as a principal to the extent of the injury done. But the burden is on the plaintiff to show that the party charged was present, aiding, encouraging, or inciting the trespass.
4. T was the keeper of a restaurant in Alexandria city, which has an ordinance prohibiting the discharging of firearms in its streets. He had shut his front door for the night, but his light was burning, when D, H, and S came there and demanded admittance about midnight. S went around at a side door, went in, and told T that D wanted to come in. D and H were at the front door. D said to H, " fire a salute," or something of the sort. H fired, and the ball went through the door into the leg of T, wounding him so severely as to cause amputation of the leg, and seriously to impair his health. In a suit brought by T against D and H, which was, at the instance of D, tried separately against him first, and a verdict rendered against him for $8,000 damages and the costs, on a motion to set aside the verdict as being contrary to the law and evidence, and because the damages were excessive, it was refused by the circuit court, and on a writ of error affirmed by this court.
5. Insisting on being admitted into the house of another at a late hour of the night after it is closed, and after being refused by the owner, is a trespass.
6. The wilful firing of a pistol in the streets of a city, whether done maliciously or not, is of itself an unlawful act, and the consequences must be visited on those who commit it, or instigate it.
7. In estimating the damages, the jury should take into consideration " the bodily injury sustained by the plaintiff, the pain undergone, the effect on the health of the sufferer, according to its degree and its probable duration, as likely to be temporary or permanent, the expenses incidental to attempts to effect a cure, or to lessen the amount of injury, and the pecuniary loss sustained by the plaintiff through inability to attend to his business."
This was an action on the case in the circuit court of Alexandria, brought by D. C. Thompson against George W. Harrison and Reverdy J. Daingerfield, to recover damages for an injury inflicted by them upon him. The declaration contains four counts, setting out in different forms the injury which he alleged he had received. In the fourth count he set out the ordinance of the city of Alexandria, which provides that no person shall discharge any musket, fowling piece, pistol or other firearms, & c., within the limits of the city of Alexandria, unless in the execution of some law, or in the discharge of some duty imposed by law. * * * Every person offending herein shall forfeit and pay one dollar for each offence. Every person contravening this section shall be considered a disorderly person, and it shall be the duty of the policemen to apprehend such person or persons, and convey him or her or them to the station-house, to be dealt with according to law: provided, that this section shall not be construed to extend or apply to, the troops of the United States, which may be at any time stationed or recruiting in the town, nor to persons acting under the immediate order of a commissioned officer of the militia when upon actual duty. And he further avers, that the defendants on the 5th of March, 1877, assaulted the plaintiff, to-wit: at the city of Alexandria, not acting in the execution of any law, & c., setting out the cases stated in the proviso to the ordinance, the said defendants in contravention of the ordinance aforesaid, with a certain pistol loaded with gunpowder and leaden balls, which the defendants then and there had, then and there, within the limits of the said city of Alexandria, to-wit, & c., stating the street, unlawfully discharged the said pistol, and thereby then and there with shot, struck and wounded the said plaintiff in his right foot, in so grievous a manner that the said plaintiff's right foot and leg became and was mortified, and by reason thereof, and setting out the amputation of the leg and the injury, and loss to his health and his business, and also the expenses he had been obliged to incur.
Daingerfield demurred to the declaration and each count thereof; but the court overruled the demurrer. He also pleaded " not guilty; " and, on his motion, his case was tried separately.
On the trial there was a verdict in favor of the plaintiff for $8,000 damages; and a motion for a new trial on the grounds that the verdict was contrary to the evidence, and the damages were excessive; but the court overruled the motion, and rendered a judgment in accordance with the verdict. And Daingerfield thereupon applied to this court for a writ of error and supersedeas; which was awarded. The evidence introduced on the trial, as well as the instructions given by the court, are set out in the opinion of Judge Christian.
John W. Johnston and S. F. Beach, for the appellant.
H. O. Claughton, Charles E. Stuart, and E. Burke, for the appellee.
This is a writ of error to a judgment of the circuit court of the city of Alexandria.
The action was trespass on the case, which the defendant in error (Thompson) instituted against two defendants, George W. Harrison and Reverdy J. Daingerfield, jointly, charging them, in various counts set out in the declaration, with assault and battery made upon him jointly by the said parties, by which said assault he was so wounded by a pistol shot fired by them as to cause the loss by amputation of one of his legs; and laying his damages for said injury at the sum of $10,000.
Both the defendants being summoned to answer this action, and the defendant, Harrison, not appearing, a conditional order was confirmed in the clerk's office as to him and an inquiry of damages directed.
The defendant, Daingerfield, appeared and demurred to the declaration and entered his plea of " not guilty." Subsequently the defendant, Harrison, also demurred to the declaration. And afterwards, at the May term of said circuit court, 1879, both parties appeared by their attorneys, and the defendant (Daingerfield) moved the court that the cause be tried as to each of the defendants separately; which motion the court granted, and the cause was continued as to defendant Harrison, and was proceeded with as to the defendant Daingerfield, upon the issue of not guilty as to him. And upon this issue, a jury, after hearing the evidence, found a verdict for the plaintiff (the defendant in error here), against the defendant Daingerfield, and assessed his damages at the sum of $8,000. Upon this verdict the circuit court entered its judgment for the sum of $8,000--the damages by the jury in their verdict ascertained, with costs.
To this judgment a writ of error was awarded by one of the judges of this court.
I am of opinion that the circuit court did not err in overruling the demurrer to the declaration. The summons sued out was to answer an action of trespass on the case, and the declaration charged the defendants with an assault in various forms in three distinct counts, and charging, as the effect of said assault, the wounding of the plaintiff so as to cause amputation of his leg, and adding a fourth count, setting forth an ordinance of the city of Alexandria, prohibiting the discharge of firearms in said city, and also alleging the continued sickness, and disorder, and suffering in consequence of said wound, and the expenses in medical attendance and other costs consequent on said wound, which he claimed amounted to a large sum.
The allegations of this declaration, taken to be true by the demurrer, certainly make out a case of trespass, and that action would lie at common law. And under our statute wherever an action of trespass will lie, trespass on the case may be maintained; for by the sixth section of chap. 145 of Code of 1873, it is provided that, section 6, " In any case in which an action of trespass will lie, there may be maintained an action of trespass on the case." It is, therefore, conclusive, that under our statute the case set out in the declaration is one upon which an action on the case may be maintained. The demurrer,...
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Wilson v Layne
...the entryway of the building and was able to film into the plaintiff's office during the police interview. 7. See, e.g., Daingerfield v. Thompson, 74 Va. 136, 151 (1880) ("There seems, indeed, to be no principle of law better settled, and for which numerous authorities may be cited if neces......