Hunt v. Di Bacco
| Decision Date | 16 May 1911 |
| Citation | 71 S.E. 584,69 W.Va. 449 |
| Parties | HUNT v. DI BACCO et al. |
| Court | West Virginia Supreme Court |
Submitted February 9, 1910.
Syllabus by the Court.
A declaration in trespass for assault and battery need not allege the exact time when the trespass was committed.
In an action for damages for assault and battery, matters in excuse or justification are not admissible under the general issue but must be specially pleaded.
A general replication traverses all the matters of defense alleged in a plea of confession and avoidance. Plaintiff need not reply specially unless he cannot deny all the averments of the plea, and wishes to admit the truth of some of them and to avoid the effect of his admission.
By virtue of statute in this state, a defendant can plead several matters of defense, whether of law or fact, in the same plea. The common-law objection for duplicity is thereby abolished.
Joint trespassers may be sued either jointly or severally.
Any person who is present at the commission of a trespass encouraging or exciting the same by words, gestures, looks or signs, or who in any way or by any means countenances and approves the same, is in law deemed to be an aider and abettor, and liable as principal, and proof that a person is present at the commission of a trespass without disapproving or opposing it is evidence from which, in connection with other circumstances, it is competent for the jury to infer that he assented thereto, lent to it his countenance, and approved it, and was thereby aiding and abetting the same.
For a wanton and willful trespass, the jury have the discretion to award exemplary damages; and, in a case where they may properly assess such damages, the court will not set aside their verdict for excessiveness, unless the amount is so great as to evince passion, prejudice, partiality, or corruption.
Error to Circuit Court, Tucker County.
Action by Daniel Hunt against Joe Di Bacco and others. Judgment for plaintiff, and defendants bring error. Affirmed.
Chas D. Smith and D. E. Cuppett, for plaintiffs in error.
Cunningham & Stallings and J. P. Scott, for defendant in error.
WILLIAMS, P.
Joe Di Bacco and Vincent Di Bacco were granted a writ of error to a judgment of the circuit court of Tucker county against them for $1,579 in favor of plaintiff in an action of trespass for an assault and battery. A demurrer to the declaration was overruled, and the defendants pleaded the general issue, and also filed two special pleas. Plaintiff replied generally to all of said pleas. Issue was thereon joined, and the jury found for the plaintiff the above-named sum.
The first error assigned relates to the overruling of the demurrer. The demurrer was in writing, and the grounds assigned are: (1) That the place of plaintiff's injury is not set out; (2) that the time of the injury is not sufficiently averred; and (3) that the declaration charges a joint tort in one count.
The demurrer was properly overruled. The declaration sufficiently alleges that the trespass was committed in Tucker county. In the caption of the declaration the court is styled as follows: "State of West Virginia, County of Tucker, to wit: In the Circuit Court of said County." And in the body of the declaration it is alleged "that the defendants did, on the -- day of October, 1908, with force and arms, assault the plaintiff at the county aforesaid," etc. The words "the county aforesaid" refer to Tucker county, the county named in the caption. But we do not mean to intimate that such an averment is essential to show jurisdiction. We are inclined to think it is not. The action is transitory, and may be brought in the county of defendant's residence. Payne v. Britton's Ex'r, 6 Rand. (Va.) 101; Shaver v. White, 6 Munf. (Va.) 110, 8 Am. Dec. 730. Moreover, no want of jurisdiction appearing upon the face of the declaration, it could not be raised by demurrer. There was no plea in abatement.
It was not necessary to allege the day on which the trespass occurred. Its nature was such that defendants could not have been surprised by failure to allege the time; nor is the exact time an indispensable allegation. Tabb v. Gregory, 4 Call. (Va.) 225; Shaver v. White, 6 Munf. (Va.) 110; Brown v. Point Pleasant, 36 W.Va. 290, 15 S.E. 209.
As to the third ground of demurrer: It is universal law that joint tort-feasors may be sued either jointly or severally. Day v. Coal Co., 60 W.Va. 27, 53 S.E. 776, 10 L. R. A. (N. S.) 167; Shaver v. Edgell, 48 W.Va. 503, 37 S.E. 664; Riverside Cotton Mills Co. v. Lanier, 102 Va. 148, 45 S.E. 875.
Defendants moved for judgment of non prosequitur, and the motion was overruled; and this action of the court is assigned as error.
A judgment by non prosequitur can be had only where plaintiff, at some stage of the action, after his appearance and before judgment, abandons and fails to prosecute his suit. 4 Min. Inst. (3d Ed.) 957; Buena Vista Freestone Co. v. Parrish, 34 W.Va. 652, 12 S.E. 817.
Counsel insist that plaintiff's failure to reply specially to defendants' two special pleas was an admission of the truth of the allegations therein contained, and amounted to an abandonment of his action. But special replications were not necessary in order to put the matters in issue. They were replied to generally. This was a general traverse, and it put in issue all the facts alleged in the pleas. Plaintiff need reply specially only in case he cannot traverse all the allegations of the plea, as, for example, if plaintiff had, in fact, assaulted and beat Vincent Di Bacco, and had wished to justify his act, he should have replied specially. 1 Chitty (11th Ed.) 592. But plaintiff does not admit having struck the first blow, and therefore it was proper to reply generally. Hogg's Pl. & Forms, § 283.
Plaintiff's counsel insist that the special pleas were improperly admitted, because, as they claim, the matters therein alleged are properly provable under the general issue. This is not correct. Matters in justification of or given in excuse for, an assault and battery, are not provable under the general issue. They must be specially pleaded. 1 Chitty (11th Ed.) 501; Shires v. Boggess, 69 S.E. 469.
The first of said pleas is objected to because it sets up two distinct matters of defense. it alleges, in substance: (1) That Vincent Di Bacco was the proprietor of a licensed saloon in the town of Thomas, Tucker county, W. Va., and that Joe Di Bacco was employed as his clerk; that it was the duty of Vincent Di Bacco to preserve order and to protect his guests from trespass therein; that plaintiff entered the saloon and assaulted and beat a certain guest named William Jacobs; that in his attempt to preserve order Vincent Di Bacco gently laid hands on plaintiff and evicted him from the saloon, doing no more than was necessary for that purpose; and (2) that immediately thereafter plaintiff again entered the saloon and assaulted and beat the defendant Vincent Di Bacco, and thereupon the defendants, in attempting to preserve the peace and prevent plaintiff from so acting, laid hands upon him and again evicted him from the saloon, using no more force than was necessary for that purpose; and that these are the acts of trespass of which plaintiff complains.
It is no valid objection to the plea that it seeks to justify on two several grounds. A defendant is permitted by statute in this state to plead as many several matters, whether of law or fact, as he shall think necessary. At the common law this plea would have been bad, and subject to special demurrer for duplicity, but not so under our statute which permits more than one issue to be presented for trial. Section 20, c. 125, Code 1906. "Duplicity in a plea is no longer ground of demurrer or objection to it." Poling v. Maddox, 41 W.Va. 779, 24 S.E. 999.
The second plea is purely one of son assault demesne, or self-defense. It alleges that the injury of which plaintiff complains was wholly caused by the assault and battery first committed by him upon defendants, and that defendants did no more than was necessary to protect themselves from injury by plaintiff. We find no fault with this plea.
The evidence shows that the assault and battery upon plaintiff was committed in a saloon conducted by Vincent Di Bacco, and in which Joe Di Bacco was employed as bartender; that it occurred in the nighttime on October 24, 1908. There had been a Republican rally in the town that day, and a large number of people from the country and the nearby coal mines had come to the rally. Plaintiff and a number of other young men went into Di Bacco's saloon, bought some beer, and went into a back room and drank it. Returning from the back room to the bar, they found a number of others at the bar, drinking. Among the number standing at the bar was a colored man by the name of William Jacobs. It appears that plaintiff and Jacobs had some unpleasant words, and plaintiff struck Jacobs in the face, and immediately walked out of the saloon. Later plain...
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