Le Laurin v. Murray

• Decision Date: 29 April 1905
• Citation: 87 S.W. 131
• Parties: LE LAURIN v. MURRAY et al.
• Court: Arkansas Supreme Court

87 S.W. 131

LE LAURIN v. MURRAY et al.

Supreme Court of Arkansas.

April 29, 1905.

Appeal from Circuit Court, Jefferson County; Antonio B. Grace, Judge.

Action for assault by A. A. Le Laurin against Arthur Murray and another. Judgment for plaintiff, and he appeals. Reversed.

A. A. Le Laurin and Arthur Murray were both members of the Elks Lodge at Pine Bluff. Some differences arising between them, Murray made charges which resulted in Le Laurin severing his connection with the lodge. Le Laurin became angry at Murray, and at different times during several years, in speaking of him, applied to him very obscene and offensive epithets. Murray heard reports of Le Laurin having applied such epithets to him, but he paid no attention to them. But early on the morning of August 30, 1901, he met one E. A. Peterson in a saloon, and Peterson informed him that Le Laurin had not only used such language, but that he had stated to him that he had applied it to Murray in his own presence in Cincinnati, and that he did not resent it. Murray then said he would see Le Laurin and make him retract the language, and Peterson offered to show him where he could find Le Laurin. They then went to Le Laurin's shop, where he made boilers and did other work in that line. After some minutes Le Laurin came along, and Peterson accosted him, and told him that he had brought Murray there, to see if he (Le Laurin) would repeat the language to his face. Le Laurin asked, "What concern is that of yours?" and Peterson made some remark in reply. Murray then approached Le Laurin, and asked him "if he said it." He replied that he did, and Murray hit him with his fist. They commenced to fight, and the result was that Le Laurin threw Murray down and fell on him, and was striking him. Thereupon Peterson drew a pistol, struck Le Laurin several heavy blows on the head with it, and pulled him off of Murray. Murray got up, and he and Peterson left, and went away together. The injuries inflicted by Murray on Le Laurin were not great, and probably not so severe as those he gave Murray. But the blows struck by Peterson with the pistol caused severe injuries, from which the blood flowed freely, so that Le Laurin's face and neck was covered with it, insomuch that he could scarcely see. Both Le Laurin and Murray testified that the assault made by Peterson was unexpected, as he was a neighbor of Le Laurin, and considered by him up to that time to be his friend. Murray testified that, on the way from the saloon to Le Laurin's shop, he told Peterson that he did not want him to interfere in any way, but stated to Peterson that, if Le Laurin would not retract, he intended to fight, and that, if he "didn't get the best of it," he would "get the worst of it." Murray further testified that he did not see Peterson strike Le Laurin, and did not know that he had done so until told by Peterson after the fight was over. Peterson corroborated this statement of Murray that he asked him not to take any part in the difficulty if any resulted. Peterson's testimony tends to show that he was somewhat under the influence of liquor, and struck Le Laurin under the influence of a sudden impulse on seeing him upon Murray striking him.

On the trial the court refused the following instruction requested by plaintiff:

"The court instructs you that you will not consider any violent or abusive language used by the plaintiff against the defendant, in mitigation of the damage, which was used by the plaintiff more than a few days before the assault; and you are instructed that if you find from the evidence that the plaintiff did use violent, insulting, or abusive language about the defendant several days prior to the assault complained of in this case, you will not consider such language in mitigation of the amount that plaintiff has shown he has been damaged by the assault."

The court, in instructing the jury, gave the following instructions over the objection of plaintiff:

"There being no dispute or conflict in the testimony in this case as to the fact that the defendant Murray committed an assault and battery upon the person of the plaintiff, Le Laurin, the plaintiff is entitled to verdict against the defendant Murray for some amount as damages—either nominal, actual, compensatory, or punitive, or two or more of these combined. The only question for you to determine is as to what the amount shall be, and what elements it shall embrace. If you find that the assault made by Murray was willful, wanton, and without reasonable excuse or provocation, then you shall award to the plaintiff not only such actual and compensatory damages as he may be shown by the proof to have sustained, but also such punitive damages as, in your judgment, the circumstances of the assault will justify.

"But if you find from the evidence that prior to the assault the plaintiff had publicly and repeatedly used of and concerning the defendant Murray abusive and slanderous language, amounting to a charge of gross obscenity and lewdness and cowardice, and which words were of such a character as would naturally tend to arouse the passions and excite the anger of any ordinary man, and that the language was communicated by Peterson to Murray on the morning of the assault, and so recently before that event that the passion excited by it had not time to cool, then such words so used by the plaintiff may be considered by the jury in mitigation of any damages which you may find that the plaintiff is entitled to recover from the defendant Murray for the assault committed by him.

"Each of the defendants in this case is liable to the plaintiff in some amount, but the fact that they went to Le Laurin's place of business together does not itself necessarily make them jointly liable for the acts of each other, although it is a circumstance which should be considered by the jury in determining what their intentions were. In order to make them jointly liable, the burden is upon the plaintiff to show by a preponderance of the evidence that, in making the assault upon the plaintiff, the defendants acted together in pursuance of a mutual understanding or agreement, either expressed or implied, or in pursuance of a then present common design and purpose to do an unlawful act.

"If Peterson and Murray had no previous understanding or design to attack and assault the plaintiff, and went to the plaintiff's place of business, and Murray demanded of Le Laurin the...