Newsom v. Starns
| Decision Date | 07 October 1931 |
| Docket Number | 870. |
| Citation | 136 So. 743 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | NEWSOM v. STARNS ET AL. |
Appeal from District Court, Parish of Livingston; N. B. Tycer Judge.
Action by Dr. Sedgie L. Newsom against Isaac G. Starns and others. Judgment for defendants, and plaintiff appeals.
Judgment set aside, and case remanded for a new trial.
Rownd & Warner, J. M. Blache, Jr., and B. M. Harvard, all of Hammond, for appellant.
A. L Ponder, of Amite, M. C. Rownd, of Springfield, and W. B. Kemp and Carroll Buck, both of Amite, for appellees.
Dr Sedgie L. Newsom prays for judgment in damages against Isaac G. Starns, Newton E. Starns, and Henry Starns in solido for $20,000 on account of personal injuries and mental pain and suffering; $20,000 on account of loss of dental practice, and $20,000 for loss of good name and reputation; a total of $60,000.
He alleges: That the defendants Isaac, Newton, and Henry, aided and assisted by their brothers Charles E. Starns and Gordon Starns, attacked him in the city of Hammond with drawn revolvers, and, threatening his life if he resisted, compelled him to get into an automobile, and was by them driven into Livingston parish. There they removed him from the automobile, compelled him to undress, poured coal tar on his naked body, and applied feathers. They then returned him to Hammond, put him out of the automobile on the streets of the city, warning him to leave Hammond and not return. That news of the offense committed on him was published in the newspapers in New Orleans, Hammond, and elsewhere. That said parties intended to and did torture, disgrace, humiliate, and subject him to shame and ridicule. That he is a dentist, and defendants by their conduct have ruined his character professionally and private in Louisiana and Mississippi, in which states he has many patients and hundreds of friends. That each and all of said parties jointly conspired, planned, and continually acted in concert, aiding, advising, and assisting each other in the execution of all the details of said criminal and diabolical acts toward him from start to finish. The petition contains numerous other averments which it is not necessary to mention at the present time.
The defendants filed an exception of non-joinder on the ground that Charles Starns and Gordon Starns had been sued on account of the same cause of action in the parish of Tangipahoa, and misjoinder on the ground that they had not been, but should be, made parties to the present suit. These exceptions were overruled.
The defendants then answered. In the first part of their answer they deny committing the alleged offense, responsibility for the ensuing publication, and resulting notoriety alleged against them by the plaintiff.
Isaac G. Starns then makes two or three special averments, which abbreviated, to substance, claims in effect that plaintiff had alienated the affections of Mrs. Starns, wife of Isaac; that he could not sue plaintiff for damages on that account, yet plaintiff's debt to respondent on said account constituted a natural obligation, and that whatever he had damaged the plaintiff was compensated by the damage which the plaintiff had done him in the way stated; plaintiff's conduct in the way stated having damaged him as much as his conduct had damaged the plaintiff.
The defendants all deny that plaintiff was damaged as a result of the tar and feathering, and substantially allege that, if he suffered any damage from the publication and notoriety, it resulted from his intimacy with the wife of Isaac thereby coming to light.
Newton E. Starns and Henry Starns on their part admit all that portion of the answer of Isaac applicable to them. Newton E. Starns and Henry Starns aver that they did not put their hands on plaintiff; that they were unarmed; that they disarmed their brother Isaac, and went along to keep him from killing the plaintiff; that, when they found that their brother Isaac had resolved to tar and feather the plaintiff, they went along, helping facilitate it without causing violence; that, if they had not done so, the plaintiff would not be here to sue. In defendants' original answer, articles 29, 30, 31, 32, 33, 34, 35, 36, and 37 of plaintiff's petition are not specifically answered, and it is not prayed that plaintiff's demand be rejected.
The plaintiff moved to take the averments not specifically answered for confessed, but the court permitted defendants, over the objection of the plaintiff, to file an amended and supplemental answer, in which all the averments in plaintiff's petition are answered, and in their supplemental answer they pray that plaintiff's demand be rejected.
Defendants Newton and Henry Starns explain in their amended and supplemental answer that the word " facilitate" in article 27 of their original answer to the effect that " they did nothing more than help facilitate it without causing violence," was an error; their intention being to convey the idea that they went along in order to prevent violence.
The case was tried before a jury, resulting in a unanimous verdict in favor of defendants. There was no motion for a new trial. The verdict was made the judgment of the court, and the plaintiff appealed.
There is no motion to dismiss the appeal to this court, but defendants urge in their brief that this court has no jurisdiction, ratione materiæ .
The Constitution, art. 7, § 10, provides that " the Supreme Court *** shall have appellate jurisdiction in civil suits where the amount in dispute *** shall exceed two thousand dollars *** except in suits for damages for physical injuries to *** or for other damages sustained by such person *** arising out of the same circumstances."
Section 29 of the same article confers appellate jurisdiction on the Courts of Appeal in all cases when the amount exceeds $100, and of which the Supreme Court is not given jurisdiction.
The tar and feathering of the plaintiff was an assault and battery, a physical injury; and the other damages claimed by the plaintiff on account of mental suffering, loss of dental practice, and reputation all arises out of the tar and feathering. The Constitution intends that a plaintiff's demand for damages on account of physical injuries and all other damages, such as mental suffering, loss of dental practice, and loss of reputation, and good name arising out of the same physical injury, shall be appealed at one and the same time to the Court of Appeal. This court, therefore, has jurisdiction as to all parts of plaintiff's demand.
The exceptions of nonjoinder and misjoinder urged by defendants in the lower court are not urged in their brief. We therefore regard their exceptions as having been abandoned, and have not considered them.
The plaintiff urges that defendants should not have been permitted to amend and supplement their answer as was done. The allowance of a supplemental and amended answer timely offered, which tends to further a just determination of the controversy, is rather to be favored than otherwise. The amended and supplemental answer filed by the defendants tends to accomplish that end. The plaintiff has suffered no wrongful injury or inconvenience as a result of the amended and supplemental answer. The lower court properly allowed it to be filed and made part of the pleadings.
Plaintiff's action against the defendants is based on the Civil Code, arts. 2315-2317 and 2324, and Code of Practice, art. 31.
Defendants forcibly took charge of plaintiff, compelled him to go with them, they applied to him tar and feathers, then brought him back to Hammond, put him out on the street, and told him must leave Hammond, as charged in his petition. They admit in their original answer that they did substantially as plaintiff claims was done, and the admission in their answer is followed up by their admissions as witnesses. Their defense is one of justification and mitigation because of plaintiff's alleged intimacy with the wife of Isaac.
Plaintiff alleges
Defendants in their original answer do not specifically answer this averment, but make a statement concerning the subject-matter put forward, which, as heretofore stated, amounts to a plea of justification and mitigation.
In their amended and supplemental answer they merely deny this averment, but such a denial does not withdraw nor revoke the statement made in their original answer, which, taken as a whole, substantially alleges that plaintiff's averment that the charges against him, of intimacy with Isaac's wife, were untrue, and on account of which plaintiff claims damages against them, was in fact true, and that they had tarred and feathered him in order to get even with him on that account; that, their charges against plaintiff being true, the notoriety which ensued therefrom did not defame, but famed him as to that matter, as he deserved to be; that, having been famed only as he deserved to be on said account, he had no right to recover damages from the defendants resulting from his own misconduct having been brought to light, even though it was brought to light as the result of a wrongful act on their part toward the plaintiff.
The defendants having joined issue with the plaintiff as to the facts alleged in article 30 of his petition, the case went to trial on this question as well as on the other questions in the case. The plaintiffs called the defendants to the stand for...
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