James Mcquiggan v. John Ladd,
| Citation | 64 A. 503,79 Vt. 90 |
| Parties | JAMES MCQUIGGAN v. JOHN LADD, ET AL |
| Decision Date | 11 July 1906 |
| Court | United States State Supreme Court of Vermont |
January Term, 1906.
TRESPASS for assault and battery against John Ladd, Daniel Ladd, and Eugene Spicer. Daniel Ladd's plea, son assault # 92 demesne. Replication, de injuria. Plea of John Ladd and Eugene Spicer, the general issue. Trial by jury at the June Term, 1905, Orange County, Powers, J., presiding. At the close of the plaintiff's evidence the court directed a verdict in favor of Eugene Spicer. Verdict as to the other defendants, not guilty, and judgment thereon. The plaintiff excepted.
Judgment reversed and cause remanded.
Harvey Harvey & Harvey for the plaintiff.
Present ROWELL, C. J., TYLER, MUNSON, WATSON, and MILES, JJ.
This is an action for an assault and battery, against John Ladd, Daniel Ladd and Eugene Spicer. John Ladd and Eugene Spicer pleaded the general issue. Daniel Ladd pleaded the general issue and also son assault demesne, to which last plea the plaintiff replied de injuria.
The case was tried by jury and comes to this Court on exceptions to the admission of certain evidence, and to the charge of the court upon the matter of self-defence.
It was claimed on the part of the defendants and their evidence tended to show that what was done on the occasion complained of, was done in self-defence, and that no more force was used by Daniel Ladd, the only defendant who used any actual force upon the plaintiff, than he reasonably believed was necessary under all the circumstances.
The defendants further claimed and their evidence tended to prove that the plaintiff was under the influence of intoxicating liquor at the time of the alleged assault and battery, which Daniel then detected; that Daniel knew at that time, by reputation and observation, that when the plaintiff was under the influence of intoxicating liquor he was a quarrelsome and dangerous man.
The evidence of the plaintiff, by his wife, Mrs. McQuiggan, tended to show that plaintiff was not under the influence of intoxicating liquor at the time of the alleged assault and battery upon him and never used the same, and that she never went to one Archie McCormick's house to have Mr. McCormick come to their house to take care of the plaintiff, because he was under the influence of intoxicating liquor, and was ugly, as the defendants claimed she did.
Under the pleadings and the claims of the parties, the defendants were permitted to show by McCormick, Patrick Brown and Mrs. Walter Ladd, subject to plaintiff's exception, that they had seen the plaintiff, on particular occasions previous to the assault and battery, under the influence of intoxicating liquor, and as to his personal appearance, disposition and actions, as to being cross and ugly, on such occasions.
This evidence was admitted upon the defendant's offer to show that these facts were brought to the knowledge of the defendant, Daniel Ladd, before the date of the alleged assault and battery; and such facts were brought to his knowledge, except two instances of drunkenness and manifestation of ugly disposition on those occasions, one testified to by Mrs. Ladd and the other by Archie McCormick.
The plaintiff further claimed and his evidence tended to prove that the defendant, Daniel Ladd, committed an unprovoked assault and battery upon the plaintiff and thereby seriously injured him.
The defendants further claimed and their evidence tended to prove, that the plaintiff committed the first assault upon Daniel, and that what Daniel did to the plaintiff on that occasion was done in the necessary defence of himself.
The pleadings in this case cast upon the defendants the burden of making it affirmatively appear, that Daniel used no more force upon the plaintiff than reasonably appeared to him, under all the circumstances, to be necessary for his own personal safety. Harrison v. Harrison, 43 Vt. 417, 424, and cases therein cited. As bearing upon the reasonableness of the force used by Daniel in repelling the claimed assault of the plaintiff, the defendants claimed and gave evidence tending to prove that Daniel knew by observation and reputation at the time of the assault, that the plaintiff, when under the influence of intoxicating liquor, was a quarrelsome and dangerous man, and that on the occasion in question the plaintiff was under the influence of intoxicating liquor which was then detected by Daniel, and that, in consequence thereof, and having in mind what he knew and had heard of the plaintiff's character under such circumstances, he was afraid of him. It therefore became important for the defendant to show that the plaintiff was under the influence of intoxicating liquor at the time of the alleged assault, and that when under the influence of intoxicating liquor he was a quarrelsome and dangerous man, or was reputed to be such, and that the defendant, Daniel Ladd, had knowledge of such facts or report at the time of the alleged assault, and believed them to be true.
The plaintiff's first exception is to the admission of the testimony of Mrs. Ladd, Brown and McCormick, wherein they testify that they had seen the plaintiff on different occasions under the influence of intoxicating liquor, at times previous to the assault in question, and that on those occasions he was cross and ugly, as stated above.
The plaintiff urges that this was error, because it was an attempt to prove character by specific instances, and he cites numerous authorities outside of this State in support of his contention, and two cases from this State, some of which support his contention and many of which do not. Among those cases which do not support his claim, are the two cases cited from our own State, and these cases illustrate the error into which the profession are liable to fall if distinctions are not carefully observed.
The word "character" has an objective as well as a subjective meaning which are quite distinct. As applied to man, objective character is his actual character; subjective character is such character as he possesses in the minds of others, and is the aggregate or abstract of other persons' opinions of him. Powers v. Leach, 26 Vt. 270, 278.
In cases of impeachment, where the question of character most frequently arises, the subjective character is the only one involved, for the law is settled, that to create impeachment one must have been so untruthful as to create a reputation in the community where he resides; and hence only general reputation is admissible to establish it; but, in a case like the one at bar, where the actions of a third person are to be affected by a knowledge of another's character, not only may the subjective character be involved, but the objective may be as well; for the action of one, influenced by the character of another, is affected to the same extent by a belief in the truth of general report as it is by a knowledge of the fact, because in either case he believes he knows the fact, and it is that belief which is important. This principle is not new. It was sanctioned in Harrison v. Harrison, 43 Vt. 417-424, a case cited by the plaintiff. The defendant there offered to prove that the plaintiff was reputed to be, and was in fact, a quarrelsome man with a violent and uncontrollable temper, known to the defendant at the time, which was excluded by the court, presumably upon an objection similar to the one raised in this case, and the Court reversed the decision and say: "So if the assailant is known to the assailed to be a practiced pugilist and a man of violence, the kind and degree of resistance must be measured, or at least modified, by the apparent danger with which the party is threatened."
Again in State v. Lull, 48 Vt. 581, another case cited by the plaintiff, the respondent offered to show the violent character of one Kefoe, on an occasion before the alleged assault and battery, knowledge of which was brought to the defendant previous to the act complained of, but the court below excluded it on the ground that it was an attempt to prove character by showing specific instances. This Court reversed that decision and held that the evidence was admissible. Judge Pierpoint, in the OPINION, speaks of its coming within the rule that it was proof of character and not particular acts of violence, and the plaintiff in this suit construes that opinion to be a holding in accordance with his contention; but a careful examination of the case shows that the Court intended nothing of the kind. It could not have been proof of general reputation, for the offer was not to that extent, but was clearly an offer to prove character as observed by the witness himself and not character gathered from the aggregate or abstract reports of others. The Court simply meant, that it was proof of objective character and not of specific instances which went to make up general reputation, or subjective character. It certainly would not accord with the reason of any man to say, that it was admissible to show by a witness the characterization of a transaction, and not admissible to show to the jury the transaction characterized, that they might judge for themselves whether the act warranted the conclusions of the witness, or to say that a person could witness a transaction, and by characterizing it and stating that characterization to a third party, make that statement evidence, but could not testify to the fact himself.
The admissibility of evidence tending to show objective character or disposition is also sanctioned in State v Meader, 47 Vt. 78, 81, wherein the rule laid down in Harrison v. Harrison, supra, is approved. The defendant in that case offered to show, that the person claimed to have been assaulted was a quarrelsome, fractious man; which was...
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