Mcnatt v. Mcrae

• Decision Date: 29 June 1903
• Citation: 117 Ga. 898,45 S.E. 248
• Parties: McNATT. v. McRAE.
• Court: Georgia Supreme Court

45 S.E. 248

117 Ga. 898

McNATT.

v.McRAE.

Supreme Court of Georgia.

June 29, 1903.

ASSAULT — CROSS-ACTIONS — RIGHT TO DAMAGES—EVIDENCE—INSTRUCTIONS — PUNITIVE DAMAGES—NEWLY DISCOVERED EVIDENCE.

1. Cross-actions in favor of each party against the other may arise out of the same affray, and such claims for damages may be presented in separate suits, or in a petition by one and a plea of set-off by the other.

2. The party first assaulted may be entitled to damages against his assailant; but, if the former use excessive force, or bevond what is necessary for his self-defense, he, too, will become liable to the other for the damages thus inflicted.

3. Where one wrongfully makes an assault, but discontinues the beating, retires, declines further combat, or otherwise puts himself in the right, he may sue, and recover for damages then inflicted, notwithstanding he may have been the original aggressor.

4. The charge that the defendant would be entitled to recover damages on his plea of setoff "if he was without fault" does not require a new trial, it being apparent from the context and the charge as a whole that the court was applying the principle above stated in instructing the jury that, even though the defendant may have been originally wrong, he could recover, if, at the time of receiving the injury, "he was without fault."

5. The plaintiff was claiming punitive damages, and it was proper to read in charge Civ. Code 1895, § 3906. Nor was this error against the defendant, as the judge also charged that both parties were claiming punitive damages. There is no assignment of error that the judge failed to instruct the jury upon the proper measure of damages in case the defendant was entitled to recover on his plea of set-off.

6. The other grounds present no reason for the grant of a new trial. If the newly discovered evidence was not all cumulative in its nature, the counter showing was sufficient to warrant the judge in refusing a new trial on that ground.

(Syllabus by the Court.)

Error from Superior Court, Montgomery County; D. M. Roberts, Judge.

Action by R. P. McRae against James Mc-Natt. Judgment for plaintiff, and defendant brings error. Affirmed.

Garrard & Meldrim, W. B. Kent, and E. D. Graham, for plaintiff in error.

Twiggs & Oliver, for defendant in error.

LAMAR, J. There was an affray in which both plaintiff and defendant were seriously injured. McRae was cut with a knife, the tendon of his forearm severed, permanently disabling him. McNatt was beaten and bruised about the head, and otherwise badly hurt. Each claimed that he had interposed as a peacemaker, and that the other bad done him great bodily harm. Each prosecuted the other, but with what result does not appear. Subsequently McRae sued McNatt for the assault and battery, and McNatt filed an answer, which was the equivalent of the general issue, besides which he filed a plea of set-off for the injury done him in the same fight. At the trial he withdrew the general denial admitted the cutting, and justified on the ground that the same was done in self-defense. The trial resulted in a verdict for McRae, whereupon McNatt moved for a new trial. The motion was overruled, and he excepted.

Both parties being injured, and one having brought suit, and the other having filed a plea of set-off, we have the rather unusual instance of cross-actions for damages growing out of the same affray. While this is unusual, it is by no means legally impossible; for, even though the party first assaulted is entitled to recover for the battery, he may have used excessive force, or beyond what was necessary for his defense, and thereby so put himself in the wrong as to become liable to the defendant, although the defendant was also liable to him. Or the plaintiff may even have made the first assault without justification, and rendered himself liable to the defendant; but if McNatt, with a deadly weapon, made an unnecessary counter assault, he would be liable for the damages thus inflicted. The...