Porter v. Seiler

• Decision Date: 01 July 1854
• Parties: Porter versus Seiler.
• Court: Pennsylvania Supreme Court

Page 424

23 Pa. 424

Porter versus Seiler.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Dauphin county.

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Porter, for plaintiff in error.—That evidence of defendant's general character was admissible, reference was made to 5 Cushing 295; 5 Porter 382; 3 Strobhart 517. It is admissible in mitigation of damages: 12 Modern 384; 9 Pick. 551; 1 Wil. Saunders 46 d; 7 Porter 106. Its admission may be restrained not only to charges of a malicious intention to kill, but to doubtful cases: 3 Greenleaf's Ev. 25; Swift on Ev. 140; 5 Taunton 326; 1 Marsh. 168; Best on Pres. 286. The law of England distinguishes between cases where the character of the parties must necessarily be in issue, and where it is not. It is admissible where from the nature of the proceeding it is material: Best 244; 2 Starkie 304; 1 Strobhart 372: 3 Bibb 192; 1 Devereux 345; 3 Caine 120; 3 Espinasse Rep. 284; 1 Greenleaf, § 54; Buller N. P. 296; 2 Atkins 339; Best 214. The case of Nash v. Gilkeson, 5 Ser. & R. 352, was an action of assumpsit.

In relation to the 4th assignment, it was said that there was no evidence that the defendant feigned greater suffering than he endured, and it was error to submit such a proposition to the jury.

5th assignment. The record was evidence in mitigation of damages, (8 Barr 456,) but by the charge it was deprived of its value for that purpose. When it was offered the plea of not guilty was the only plea, and the record was admissible. 6th. There being no evidence of a practice in the community of carrying deadly weapons, it was error to submit such a view to the jury: 5 Watts 275; 6 Id. 74; 8 Id. 385; 10 Barr 363.

McAllister and Rawn, for defendant in error.—In civil cases evidence of defendant's general character is not admissible, unless it is put in issue by the nature of the proceeding: 1 Starkie 303; 5 Ser. & R. 352, Nash v. Gilkeson; 10 Ser. & R. 55, Anderson's Executors v. Long; 5 Watts 344; 3 Blackf. 155; 3 Penna. Rep. 49; 1 Camp. 460; 3 Id. 519; 2 Saunders Pl. 785; 1 Selwyn N. P. 35, note a; 5 Porter 382; 6 Harrison's Dig. 2787; 8 W. & Ser. 376; 9 Barr 137; 2 B. & P. 532; 1 Greenleaf's Ev. § 54, 55. This kind of evidence is inadmissible, where the general character is involved by the plea only, and not by the nature of the action. It is not admissible in actions for assault and battery, nor in assumpsit, nor in case for malicious prosecution, &c.

In the narr. in this case there is no charge of an intention to kill. Good character is no shield against a claim for damages. The nature of the action determines whether evidence of character is admissible; and where from its nature, as in libel or slander, or by husband for the seduction of his wife, character is involved, it is admissible; otherwise not. In this case the defendant's character was not directly involved, and a good character on his part would not restore strength to the plaintiff.

Whether evidence of intention is admissible to affect the amount of damages, will depend on its materiality to the issue. In actions of trespass vi et armis, the secret intention of the defendant is immaterial.

3d assignment. The degree of weight to be given by a judge in directing the jury to particular evidence must be left to his discretion, which is not the subject of revision: McClel. & Y. 286; 4 Ch. Gen. Prac. 42; 11 Wendell 18; 10 Pick. 252; 8 Conn. 431; 8 Greenleaf 42; 1 Rep. Con. Ch. 216, Kinlock v. Palmer; 7 Ser. & R. 230.

As to 5th assignment was cited 3 Whar. 274; 3 Rawle 172. In an indictment for assault and battery with intent to murder, where the killing would have amounted to manslaughter only, the defendant must be acquitted: Whar. C. L. 316; Lewis 98; 1 Russel 585. When the charge was given the plea of son assault demesne was in, and the case of Frederick v. Gilbert, 8 Barr 456, was applicable. That the record was not admissible in mitigation of damages was cited 4 Bibb 400. It was also said that the record was not offered in mitigation of damages.

As to the 6th assignment, reference was made to 4 Ser. & R. 27, Sommer v. Wilt; 5 W. 376, damages may be given not only to compensate but to punish; or for example: Id. 377. Also cited 1 Barr 197; 8 Id. 65; Sedgwick on the Law of Damages 39; 5 Day 144; 6 Conn. 508; 11 M. & W. 625; 1 Gall. 483.

The opinion of the Court was delivered by KNOX, J.

This was an action of trespass vi et armis, brought by Christian Seiler v. Henry Porter, to recover damages for an alleged assault and battery. The declaration charges the assault and battery to have been committed by injuries inflicted with a knife of the defendant upon the person of the plaintiff. The plea was "not guilty," to which was added after the evidence had closed, "son assault demesne." The verdict was for two thousand dollars, upon which judgment was rendered in the Common Pleas of Dauphin county.

In this Court six errors are assigned. One to the admission of evidence offered by the plaintiff; one to the rejection of evidence offered by the defendant; and four to the instructions given by the Court to the jury in the general charge.

But little need be said as to the first, third, fourth, and sixth assignments of error.

Nothing can be clearer than that it was not only competent, but important for the plaintiff to show that he was authorized by the owner of the horse to take it from the possession of the owner's son and the defendant, otherwise he would have occupied the very unfavorable position of being injured in attempting, by force and without right, to take possession of a horse and carriage then in the actual custody of others.

The remark as to which of the witnesses were entitled to the most credit, preceded and followed as it was by the explicit declaration that the jury were the sole judges alike of the correctness and credibility of the witnesses, calls for no interference from us. The same may be said as to that part of the charge in which the jury were told that it was for them to determine to what extent the defendant was injured, or whether he feigned greater suffering than he endured. Surely it requires no argument to prove that we cannot reverse an important cause upon such grounds as these.

As to the damages, the jury were instructed that if they believed the attack was wanton and unprovoked, and with a deadly weapon, they could give exemplary, or even vindictive damages, if necessary to repress the practice of carrying and using deadly or dangerous weapons. The objection urged against this part of the charge is, that there was no evidence that any such practice existed in the community where the injury was inflicted and the cause tried. Grant it. Yet the direction was correct without the reason. If the attack was wanton and unprovoked, and with a deadly weapon, it was a case for vindictive damages, whether there was such a practice or not, and whether it would repress it or not. The addition could not injure the defendant, but might benefit him, for the jury might infer that unless it was necessary to repress the practice spoken of, vindictive damages should not be given. So far the case is free from difficulty. There remain, however, to be noticed, somewhat more in detail, the second and fifth assignments of error.

The defendant offered upon the trial to show his general character, that it was uniformly good, and that he was reputed to be a peaceable and orderly person, for the purpose of rebutting any inference of malice. This was objected to and rejected. The question thus presented is by no means a new one. Many cases in which the principle is involved are to be found in the English reports, and in those of the different states of this Union. The decisions have not been in entire conformity with each other, but the weight of authority is largely in favor of the rule as pronounced by the Court below. The Attorney-General v. Bowman, 2 Bosanquet & Puller 532, note A, is the leading English case. This was an information against the defendant for keeping false weights. It was proposed to give evidence of his general good character, but it was held to be inadmissible, Chief Baron EYRE observing that "the offence imputed is not in the shape of a crime." It would be contrary to the true line of distinction to admit it, which is this, that, in a direct prosecution for a crime, such evidence is admissible, but where the prosecution is not directly for the crime but for the penalty, it is not. In Goodright v. Hicks, cited in Buller's N. P. 296, which was an action of ejectment by an heir at law, to set aside a will for fraud and imposition committed by the defendant, it was held that witnesses could not be examined as to defendant's good character. Humphreys v. Humphreys, 7 Conn. Rep., was an issue upon the adultery of the wife, and the proof, merely presumptive evidence of her good character, was refused: Woodruff v. Whittelsey, 1 Kirby 60. Trover for goods, where fraud upon creditors by a colorable bill of sale was in question, and the evidence circumstantial, the general character of the parties to the bill for honesty was refused. In Fowler v. Etna Fire Insurance Co., 6 Cowen 473, a fraudulent valuation of loss at a fire was imputed to plaintiffs, which involved moral perjury at least, it was ruled that evidence of his good character was improperly received.

Gough v. St. John, 16 Wendell 646, was an action on the case for a false and fraudulent representation as to the solvency of another. Upon the trial evidence was received that the defendant sustained a good character for honesty and fair dealing. The judges of the Supreme Court were unanimously of opinion that this evidence was inadmissible; admitting that the contrary had been decided in Ruan v. Perry, 3 Caines 120, but overruling it in terms. In Givens v. Bradley, 3 Bibb 195, evidence of the plaintiff's character was refused, although the action was assault and battery; and in Rogers v. Lamb, 3 Blackford 155, which was...