Davis v. Franke

• Decision Date: 12 August 1880
• Citation: 74 Va. 413
• Court: Virginia Supreme Court
• Parties: DAVIS & als. v. FRANKE.

74 Va. 413

DAVIS & als. v. FRANKE.

Supreme Court of Appeals of Virginia.

August 12, 1880

Absent Moncure, P.

1. In an action of trespass on the case for assault and battery the defendant, under the general issue, may give in evidence matters which merely go to the quantum of damages by way of palliating the offence.

2. While it is true, that where the defendant in such action relies upon provocation as a defence, he is limited to such recent acts as will raise the presumption that the assault was committed in heat of blood, excited by the conduct or declarations of the plaintiff; yet where the plaintiff makes the offensive acts or declarations committed or said by him long anterior to the assault, a part of the res gestæ , by repeating or alluding to them at the time, in a manner which indicates a repetition, renewal of or persistence in them, they are admissible in evidence on behalf of the defendant; and this is so, even where one of the acts of the plaintiff was a libel against the defendant, for the publication of which the defendant had already recovered damages.

3. In a joint action of trespass against several defendants, it is competent to show a provocation received by only one of them.

4. Where the object of testimony offered is to impeach a witness by proof of statements previously made inconsistent with his testimony on the trial; or to discredit him, by proof of an attempt to fabricate testimony; the foundation for such impeaching or discrediting testimony must be first laid by an examination of the witness sought to be impeached, with reference to such inconsistent statements or improper conduct, and these rules are as applicable where a plaintiff is the witness sought to be impeached as in other cases.

5. A witness is asked if he knew the general character of the plaintiff for truth and veracity? and replies, that he had known him six or seven years, and knew his general character for truth and veracity as well as any other man's character against whom he had never heard anything alleged. That he had never heard plaintiff's character called in question. This was proper evidence to go to the jury.

6. A plaintiff, for the purpose of sustaining his character for truth and veracity, introduced a witness who had lived near him, and who testified that he had never heard anything against his veracity until this and a former suit by one of the defendants against plaintiff had been instituted. On cross-examination, defendant asked witness, " if he had not heard a number of plaintiff's neighbors testify in both suits that they were acquainted with plaintiff's character for truth and veracity; that it was bad, and they would not believe him on oath?" The answer to this question was, on motion of the plaintiff, properly excluded from the jury.

This was an action of trespass on the case in the circuit court of Smyth county, brought by H. G. Franke against William M. Davis, D. T. Davis, J. K. Davis and N. T. G. Fair, to recover damages for an assault and battery made upon him by the defendants. Issue was made up on the plea of " not guilty" ; and on the trial of the case, the jury found a verdict in favor of the plaintiff for $3,500; upon which the court entered a judgment against the defendants, except Fair, with interest from the date of the judgment, and costs. And the defendants obtained a writ of error.

On the trial the defendants took five bills of exception to rulings of the court excluding evidence offered by them.

After the plaintiff had offered evidence to prove that the assault was made upon him by the defendants, on the 4th of October, 1875, at a warrant trying before James V. McDonald, a justice of the peace, in which J. K. Davis and William M. Davis and the plaintiff were the parties; the defendants offered in evidence in mitigation of damages a postal card which had been sent through the mail by the plaintiff to the justice, about the case of William M. Davis against him then pending before the justice, a short time previous to the assault. The postal card is not in the record, but there is sufficient evidence, it was very offensive. And the defendants also offered to read to the jury for the same purpose a publication in the Marion Herald, made by the plaintiff against said defendant William M. Davis, several months previous to the assault, as follows:

" Having been asked by a number of persons if I had accused W. M. Davis of swearing falsely, I will state that I did say that it was proven that he had given false and incorrect evidence in a certain controversy, and that I said so to his face before witnesses; and that he was trying (while a justice of the peace) to collect money from me unlawfully; and to all whom it may properly concern the proof will be furnished.

H. G. FRANKE."

July 6th, 1875.

It appeared that the day had been fixed for the trial of a warrant between J. K. Davis and the plaintiff, and for hearing two applications by Franke for new trials in cases between William M. Davis and himself, and after the case of T. K. Davis v. Franke was concluded, the question of granting new trials in the two cases of William M. Davis v. Franke, came up on the application of Franke; and Davis brought forward witnesses to impeach the character of said Franke for truth, to overthrow his affidavit for a new trial; when Franke asked for time to get witnesses to sustain his character, he saying in reply to an imputation cast upon him by J. K. Davis he had established his good character by a number of the best men in the county not long since, and could say that some others had not, but failed. Then J. K. Davis said: " I suppose you have allusion to that publication in the paper, and card" ; to which Franke made no reply, and immediately thereafter William M. Davis commenced to strike him with a switch, and J. K. Davis struck him about the same time.

The defendants then offered in evidence the said postal card and publication in mitigation of damages; but the court excluded the evidence, and the defendants excepted. This is their first exception.

In the further progress of the trial, the defendants asked the witness who had spoken of the postal card, to what postal card he referred; without asking its contents; but the plaintiff objected to the witness answering the question; and the court sustained the objection, and refused to permit the witness to answer; and the defendants excepted. This is defendants' second exception.

The grounds of the other exceptions are stated in the opinion of Judge Staples.

J. P. Sheffey and F. S. Blair, for the appellants.

J. H. Gilmore, for the appellee.

STAPLES J.

The authorities are generally agreed that in an action of trespass and assault and battery the defendant may under the general issue give in evidence matters which go merely to the quantum of damages by way of palliating the offence. Where the defendant relies upon provocation it must be so recent as to raise the presumption the assault was committed in heat of blood excited by the conduct or declarations of the plaintiff. The rule which confines the defendant to proof of recent provocations received from the plaintiff is subject to modifications which more or less qualify the rule according to the particular circumstances of each case. In Fraser v. Berkely, 32 Eng. C. L. R. 658, it appeared, that the assault was made three or four days after the publication of the libel. Lord Abinger said the law would be an unwise law if it did not make allowance for human infirmities; and if a person commit violence at a time when he is smarting under immediate provocation that is matter of mitigation. He further said, that in the case before him as the blood has had time to cool, the parties, if death ensued, would be guilty of murder. The provocation three days before would not have availed them for going deliberately three days after to take their vengeance. At the same time he said " it appears to me too severe to say you should not look at the cause which induced the assault." In other cases it has been held that although a considerable time may have elapsed between the provocation and the date of the assault, if the provocation was communicated to the defendant immedately preceding the assault it is admissible in evidence. Gaither v. Blowers, 11 Mary'd R. 536.

And so where the acts done or words spoken some time previous to the assault are a part of a series of provocations repeated and continued up to the time of the assault, they may be received. Stetlar v. Nellis, 60 Barb. R. 524; 42 How. Prac. R. 103.

In Rawlings' case, 1 Leigh 581, the general court while declaring that the rule in civil and criminal cases is the same, and that acts of provocation received so recently the blood has not had sufficient time to cool are only admissible in mitigation of damages, seemed to concede that where at the time of the assault allusion is made to the provocation previously given, the evidence is admissible as explanatory of the nature of the assault; provided the connection between it and the antecedent provocation plainly appears. In Field on Damages, § 116, it is said, that generally where vindictive damages for willful injuries to the person are claimed, the defendant shall not be restricted to matters which took place at the very time of the injury complained of. But he has a right to show the jury the true relation of the parties, and the facts and circumstances relating to the act, in order that they may determine how far the act was wanton, vindictive or malicious, or how far it is extenuated. See also Dolan v. Fagan, 63 Barb. R. 73.

It would seem to be clear, therefore, that the rule which restricts the proof to acts of recent provocation is not at all infringed by evidence of acts or...