Dannenberg v. Berkner

• Decision Date: 03 November 1903
• Citation: 45 S.E. 682,118 Ga. 885
• Parties: DANNENBERG et al. v. BERKNER.
• Court: Georgia Supreme Court

45 S.E. 682

118 Ga. 885

DANNENBERG et al.

v.BERKNER.

Supreme Court of Georgia.

Nov. 3, 1903.

ASSAULT AND BATTERY—JUSTIFICATION— SELF-DEFENSE—DAMAGES—EVIDENCE.

1. In an action for damages for an assault and battery, the character of the plaintiff for turbulence, of itself, affords no justification.

2. In such an action, where the defendants' plea was self-defense, and that they had acted under the fears of reasonable men, and where it appeared that the battery was caused by opprobrious words spoken by the plaintiff, but there was no actual assault on defendants by him, it was not error to charge that the jury might consider the character of the plaintiff for turbulence, so far as known to the defendants, in passing on the question whether they acted under the fears of reasonable men.

3. The petition alleged that immediately after the battery one of the defendants stated in a loud voice to the passengers in the car, as his excuse therefor, that it was because the plaintiff "denied owing a debt which he has owed for the past nine years." There was no special demurrer. Even if not actionable in a suit for slander, it was not error to charge that the words could be considered by the jury in assessing the damages.

4. There was no error in the exclusion of evidence, or in the charges or refusals to charge excepted to. The damages were not excessive, nor was the verdict contrary to law, in view of the ruling in the same case between the same parties in Berkner v. Dannenberg, 43 S. E. 463, 116 Ga. 954, 60 L. R. A. 559.

(Syllabus by the Court.)

Error from Superior Court, Bibb County; W. H. Felton, Judge.

Action by H. J. Berkner against J. Dannenberg and others. Judgment for plaintiff, and defendants bring error. Affirmed.

In Berkner v. Dannenberg, 116 Ga. 954, 43 S. E. 463, 60 L. R. A. 559, there is a sufficiently full statement of the facts of the battery for which the plaintiff sued the three defendants. It was there held that opprobrious words will not free a person who actually committed an assault and battery from liability in a civil action for damages. This court expressly declined to intimate any opinion in relation to the other contention made by the defendants—that what they did was in consequence of a belief that the plaintiff was about to draw and use a weapon. There is in the present record evidence that the plaintiff was drinking at the time of the battery, and witnesses testified that when in such condition the plaintiff had the reputation of being quarrelsome (some said dangerous), if he had a weapon, though there is no evidence that he ever made any assault or inflicted any injury on any person. One of the defendants testified that he had heard from several people that the plaintiff was a dangerous man when he was drinking, and, from his threats and epithets, was apprehensive that he might do him some personal injury. Again he said, "I knew that he was dangerous when he was full of liquor." Another of the defendants said, "I knew from general reputation that he was a man, when he was under the Influence of whisky, who would be quarrelsome and fussy." It appeared that the plaintiff used an opprobrious epithet of and to one of the defendants; that an altercation ensued; that one of the defendants cried out he was armed; that a bystander searched him, and reported that he had no pistol; that the plaintiff was put on the front platform, and, while there, turned and repeated the epithet to one of the defendants; and the plaintiff claims that thereupon the defendants attacked him through the window, kicking him with theirfeet, and jabbed him or stabbed him with the sharp end of an umbrella. The defendants admitted the assault, claiming that they kicked at him and struck him with the handle of the umbrella, but did him no serious injury. There was evidence of wounds on the head and bruises about the body. The jury returned a verdict for the plaintiff. The judge charged that evidence as to the plaintiff's general reputation had been admitted, and might be considered by the jury for the purpose of determining whether, from defendants' knowledge of such character, they were acting under the fears of reasonable men.

Hardeman, Davis, Turner & Jones, for plaintiffs in error.

A. L. Dasher, for defendant in error.

LAMAR, J. 1, 2. It is unnecessary to consider whether, under Malone v. State, 49 Ga. 218, and Wall v. State, 69 Ga. 766, the conduct of the plaintiff was such as to demand a charge on the subject of reasonable fears, because the court gave the defendants the full benefit of that principle, and repeatedly charged that they might consider whether, in making the battery, the defendants were acting under the fears of reasonable men. Nor was it error requiring the grant of a new trial to instruct the jury that they might consider the character of the plaintiff for turbulence, ...