McGehee v. C.

• Decision Date: 01 January 1852
• Parties: T. G. MCGEHEE v. C. V. SHAFER.
• Court: Texas Supreme Court

9 Tex. 20

T. G. MCGEHEE

v.C. V. SHAFER.

Supreme Court of Texas.

1852.

That the plaintiff had endeavored to entice away the slave of the defendant, promising to return to carry out his purpose in a month, is no justification of a whipping inflicted upon the plaintiff by the defendant in the meantime, and alleged to have been done for the purpose of deterring the plaintiff from carrying out his unlawful intent, although the same facts were admissible in extenuation of damages.

It seems that matters which go merely in aggravation or in extenuation of damages need not be pleaded; and if pleaded, disconnected from a good cause of action or ground of defense, are subject to exceptions.

In cases in which the jury are at liberty to expose exemplary damages a new trial will not be granted on the ground of excessive damages, unless they be so flagrantly excessive as to warrant the conclusion that the jury were actuated by passion, partiality, or prejudice.

Where it was urged as a ground for a new trial that one of the jurors had been a member of a grand jury which found a bill against the defendant for the same trespass, it was answered that the fact nowhere appeared, and that if there had been any objection to the competency of a juror, it should have been urged when the jury were impaneled, or the defendant should have reduced at least the evidence of his own affidavit to the fact that the objection to the juror was not then known to him.

Where in support of a motion for a new trial it was proved that one of the jurors had been heard to remark previous to the trial that the plaintiff “would have friends at the trial who would point out to him who would be his friends on that occasion,” the court said the remark was not deemed to afford evidence of partiality or prejudice, and that it should have been made the subject of challenge if known to the defendant; and if not known, the affidavit of the defendant to that effect at least should have been submitted in support of the motion. (Note 4.)

Appeal from Caldwell. The appellee sued the appellant for a trespass committed by the latter upon the person of the former by the infliction of stripes.

The defendant justifies the trespass, pleading specially in bar of the action, in substance, that the plaintiff on the night previous to the whipping, which he admitted, had endeavored to entice away his negro, and had made an appointment to come and take him away two months thereafter, and that the whipping was necessary to prevent the contemplated injury. He also pleaded “not guilty.”

The plaintiff excepted to the special plea. The exceptions were sustained, but the defendant was permitted to give in evidence the matters specially pleaded in mitigation of damages.

It appeared that the plaintiff, wagoning upon the highway which led by the defendant's residence, stopped at or near his house to pass the night; that in the night he had a conversation with the negro man of the defendant; that on the following morning the defendant collected some of his neighbors, pursued after and overtook the plaintiff, accused him of having endeavored to incite his negro to run away, or of having had a conversation with him about running away, and demanded a confession, which the plaintiff refused, protesting that he had done nothing wrong, and offered to go before a magistrate; upon which the plaintiff cut switches or sticks, with which he inflicted blows upon the back of the plaintiff, which he continued for some time, stopping occasionally to repeat the demand of a confession. At length the plaintiff confessed that he had a conversation with the negro of the character charged by the defendant, when the latter desisted. During the whipping the plaintiff fell down, and so remained until it ceased. He was severely bruised; he called in a physician; and according to some of the witnesses was for some time disabled from attending to his affairs, though he was not confined, but rode and walked about.

The defendant proved that since the whipping the plaintiff publicly and on various occasions had admitted having conversed with the defendant's negro on the night previous about running away, and going to Germany, and being free, and had said that he would be along that way with his wagon again in two months, when he would take him away with him. But the plaintiff accompanied these admissions with the statement that he was but jesting with the negro.

There was a verdict for the plaintiff for one thousand dollars damages, whereupon the defendant moved the court for a new trial on the following grounds: 1st, that the verdict was contrary to law and the evidence; 2d, that the damages were excessive; 3d, that a juror, one Hoskins, was also a member of the grand jury who had returned a true bill against the defendant for the same assault and battery which is the subject of this suit, and that the juror was not impartial.

In support of the motion the defendant submitted the affidavit of one Hammonds, who stated that previous to...