J. S. Royer v. L. L. Belcher

• Decision Date: 02 February 1926
• Docket Number: (No. 5415)
• Citation: 100 W.Va. 694
• Court: West Virginia Supreme Court
• Parties: J. S. Royer v. L. L. Belcher

100 W.Va. 694

J. S. Royer

v.L. L. Belcher

(No. 5415)

Supreme Court of Appeals of West Virginia.

Submitted January 26, 1926.

Decided February 2, 1926.

1. Assault and Battery Evidence of Provocation May be Given to Mitigate Exemplary, But Not Actual, Damages; Evidence of Provocation Held Not Admissible, Unless Affront Was so Recent as to Induce Presumption That Assault Was Committed Under Passion Produced Thereby,

In an action for an assault, evidence of the provocation may be given to mitigate exemplary, but not the actual damages. Such evidence will not be admissible, however, unless the affront was so recent as to induce the presumption that the assault was committed under the passion produced thereby and before the blood had time to cool. (p. 695.)

(Assault and Battery, 5 C. J. 118, 119.)

2. Same Question as to Whether Passion Induced by Affront Had Time to Cool Depends on Whether Under All Circumstances One Affronted Had Reasonable Time to Regain Self-Control; Reasonable Time for Cooling of Passion Caused by Affront Should be Submitted to Jury.

The courts recognize no arbitrary length of time in which the passions should cool. The question in every such case is whether in reference to all the circumstances the one affronted has had reasonable time in which to regain his selfcontrol. What is reasonable time should be submitted to the jury. p. 695.)

(Assault and Battery, 5 C. J. §§ 119, 135.)

3. Same In Fight by Mutual Consent, Mere Fact That One of Parties Seeks Opponent Will Not Prevent Him From Recovering for Injuries Received.

Where the fight is by mutual consent, the mere fact that one of the parties seeks his opponent will not prevent him from recovering for injuries received therein, (p. 697.)

(Assault and Battery, 5 C. J. § 24.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Error to Circuit Court, McDowell County. Action by J. S. Royer against L. L. Belcher. Judgment for plaintiff, and defendant brings error.

T. F. TIenritze and Strother, Sale, Curd & Tucker, for plaintiff in error.

Sanders, Crockett, Fox & Sanders, for defendant in error.

Hatcher, Judge:

This is an action in trespass brought in the circuit court of McDowell County. The jury rendered a verdict of $250.00 in favor of the plaintiff. From a judgment thereon, the defendant prosecutes error here.

On the evening of March 28, 1924, the defendant was informed by his wife of an insulting remark reported to have been made about her by the plaintiff. Shortly after receiving this information, the defendant went in search of the plaintiff, and upon finding him, charged him with the remark. The fight ensued. It consisted of two parts or rounds. During the first round the defendant was the sole aggressor, striking the plaintiff several times about the head and face with his fist. The plaintiff acted wholly on the defensive, and finally escaped up a stairway in a nearby building. By the time the plaintiff reached the top of the stairs, he was bleeding profusely from some cuts on his head, produced apparently by a ring worn by the defendant. When the plaintiff realized this condition, he was unwilling to let the matter rest, so returned to the street and renewed the conflict. The defendant was entirely willing to continue the fray. When he saw the plaintiff returning, he asked, "Do you want some more?" The plaintiff answered in the affirmative, and the defendant, according to his own testimony, "proceeded to give him some more." In the second round the plaintiff received more cuts and bruises. As a result of the entire encounter, the plaintiff's clothing was badly soiled, his glasses were lost, and his physical injuries were such as to render necessary the attention of a physician and hospital treatment.

The defendant attempted to introduce in evidence, in mitigation of damages, the remark which had given umbrage, but the court refused to allow it to go to the jury. The authorities are in full accord as to such evidence. If the provocation is so recent as to induce the presumption that the assault was made under the immediate influence of the state of mind induced by the provocation and before sufficient time had elapsed for "the blood to cool", then the provocation should be admitted in evidence. 2 R. C. L. 588; 2 A. & E. Ency. 998; 5 C. J. 677 et seq. This ruling has been extended to permit such testimony if the provocation has come to the knowledge of the defendant immediately before the assault, although the affront may have been committed sometime previous thereto. Jacaway v. Dula, 7 Yerg. (Tenn.) 82, 27 Am. Dec. 492. The evidence in the present case does not disclose how long a time intervened between the report of the remark to the defendant, and the commission of the assault. The inference is that it was a very short period. The courts recognize no arbitrary length of time, in days or hours or minutes, in which the passions should cool. The question in every such case should be not the length of time since the defendant received the provocation, but whether in reference to all of the circumstances in the case, he has had reasonable time in which to regain his self-control. See cases cited in notes on page 679, 5 C. J., particularly Dolan v. Fagan, 63 Barb. (N. Y.) 73-75. What constitutes reasonable time in such a case should be submitted to the jury.

It should be borne in mind, however, that such evidence is admissible only in mitigation of the punitive damages claimed, and not for the purpose of mitigating the actual damages inflicted, A different view was taken in some of the earlier decisions, particularly by the Wisconsin court in the leading case of Morley v. Dunbar, 24 Wis. 183. But the majority of modern decisions limits mitigation to exemplary damages. 2 R, C. L. 587, par. 68; 5 C. J. 676, par. 116; Prentiss v. Shaw, 56 Me. 427; 96 Am. Dec. 475; Goldsmith's Admr. v. Joy, 61 Vt. 488. Even the Wisconsin court, in the case of Grace v. Dempsey, 75 Wis. 313, cites with approval the holding in the case of Goldsmith's Admr. v. Joy, supra, and concedes "Of course a plaintiff's compensatory damages are limited to such...