Harden v. Hodges

• Decision Date: 20 June 1903
• Citation: 76 S.W. 217
• Parties: HARDEN et al. v. HODGES.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

76 S.W. 217

HARDEN et al. v. HODGES.^*

Court of Civil Appeals of Texas.

June 20, 1903.

Appeal from District Court, Stephens County; N. R. Lindsay, Judge.

Action by R. J. Hodges against A. J. Harden and another. Judgment for plaintiff. Defendants appeal. Affirmed.

D. G. Hunt and Jno. D. Hopson, for appellants. W. P. Sebastian and Theo. Mack, for appellee.

SPEER, J.

R. J. Hodges sued A. J. and Pierce Harden, father and son, for $3,000 actual, and $2,500 exemplary, damages growing out of an assault and battery inflicted upon him, alleged to have been committed by said defendants, acting in conjunction with one Hub Harden, a minor son of A. J. Harden. The defendants answered by general denial, plea of not guilty, and pleaded specially that if plaintiff was assaulted by them, said assault was made in the necessary self-defense of their lives and persons against the previous assaults of the plaintiff, and that the defendants used no more force than was reasonably necessary in defense of their persons and for the protection of their property. There was a verdict and judgment in favor of Hodges for $995, and the Hardens have appealed.

The first assignment of error challenges the action of the court in refusing the following special charge requested by appellants, to wit: "In this case the plaintiff alleges that he was damaged by means of the defendants A. J. Harden and Pierce Harden acting together with Hub Harden in committing an assault upon his person. You are instructed that Hub Harden is not a party defendant to this suit, and should you find from the evidence that the plaintiff and Hub Harden became involved in a difficulty, and that A. J. Harden interfered in said difficulty for the purpose of protecting his minor son, Hub Harden, and that the plaintiff then assaulted A. J. Harden with a knife, the same being an instrument reasonably calculated to inflict death or serious bodily injury, and if you further believe from the evidence that Pierce Harden, seeing his father so assaulted, if he was so assaulted, and that it reasonably appeared to Pierce Harden that his father was in danger of losing his life, or having serious bodily injury inflicted upon his person, and that he then threw at and struck the plaintiff for the purpose of preventing plaintiff from inflicting serious bodily injury on his father, and if you further find from the evidence that the plaintiff made an assault on Pierce Harden with a knife, the same being an instrument from the way and manner of its use reasonably calculated to produce death or serious bodily injury, and it reasonably appeared to A. J. Harden that Pierce Harden was then in danger of losing his life, or having serious bodily injury inflicted upon his person, and that he threw at and struck plaintiff for the purpose of preventing the plaintiff from inflicting serious bodily injury upon his son Pierce Harden, you will find for the defendants." It is a sufficient objection to this charge that it submits a defense not pleaded by the appellants. The interference for the protection of the minor, Hub Harden, from the assaults of appellee was not pleaded as a justification of the assault upon appellee. The rules of pleading in civil, and not criminal, cases apply to this character of case (Shapiro v. Michelson [Tex. Civ. App.] 47 S. W. 746), and the general, if not universal, rule is that matters in justification cannot be given in evidence under the general issue, but that the acts relied upon as a justification must be specially pleaded, whether son assault demesne, molliter manus imposuit, or other similar plea (McGehee v. Shafer, 9 Tex. 20; Isley v. Huber, 45 Ind. 421; Schroder v. Ehlers, 31 N. J. Law, 44; Likes v. Van Dike, 17 Ohio, 454; Hathaway v. Rice, 19 Vt. 102; Bowman v. St. John, 43 Ill. 337; Lunsford v. Walker, 93 Ala. 36, 8 South. 386; Kerwich v. Steelman, 44 Ga. 197; Illinois Steel Co. v. Novak, 184 Ill. 501, 56 N. E. 966; Norris v. Casel, 90 Ind. 143; Wilken v. Exterkamp [Ky.] 42 S. W. 1140; Atkinson v. Harran, 68 Wis. 405, 32 N. W. 756; Hathaway v. Hatchard, 160 Mass. 296, 35 N. E. 857). In the absence of such...