R. Goldsmith's Adm'r v. Moses Joy, Jr

• Citation: 17 A. 1010,61 Vt. 488
• Parties: R. GOLDSMITH'S ADM'R v. MOSES JOY, JR
• Decision Date: 01 February 1889
• Court: Vermont Supreme Court

17 A. 1010

61 Vt. 488

R. GOLDSMITH'S ADM'R v. MOSES JOY, JR

Supreme Court of Vermont

February 1, 1889

FEBRUARY TERM, 1889

We find no error in the charge and the judgment is affirmed.

Martin & Archibald, J. L. Martin and J. C. Baker, for the plaintiff.

OPINION

TYLER

The court instructed the jury that there was no defense to the claim for actual or compensatory damages; that words were no legal excuse for the infliction of personal violence that no matter how great the provocation, the defendant was bound in any event to answer for these damages.

It is a general and wholesome rule of law that whenever, by an act which he could have avoided and which cannot be justified in law, a person inflicts an immediate injury by force, he is legally answerable in damages to the party injured.

The question whether provocative words may be given in evidence under the general issue to reduce actual damages in an action of trespass for an assault and battery has undergone wide discussion.

The English cases lay down the general rule that provocation may mitigate damages. The case of Frazer v. Berkeley, 7 Car. & P. 789, is often referred to, in which Lord Abinger held that evidence might be given to show that the plaintiff in some degree brought the thing upon himself; that it would be an unwise law if it did not make allowance for human infirmities; and if a person commit violence at a time when he is smarting under immediate provocation, that is matter of mitigation. Tindal, Ch. J., in Perkins v. Vaughan, 5 Scott's N. R. 881, said: "I think it will be found that the result of the cases is that the matter cannot be given in evidence where it amounts to a defense, but that where it does not amount to a defense, it may be given in mitigation of damages." Linford v. Lake, 3 Hurl. & N. 275. Addison on Torts, s. 1393, recognizes the same rule.

In this country, 2 Greenl. on Ev., s. 93, states the rule that a provocation by the plaintiff may be thus shown if so recent as to induce a persumption that violence was committed under the immediate influence of the passion thus wrongfully excited by the plaintiff. The earlier cases commonly cited in support of this rule are Cushman v. Ryan, 1 Story 100; Avery v. Ray, 1 Mass. 12; Lee v Woolsey, 19 Johns. 319, and Maynard v Beardsley, 7 Wend. 560. The Supreme Court of Massachusetts has generally recognized the doctrine that immediate provocation may mitigate actual damages of this kind. Mowry v. Smith, 91 Mass. 67, 9 Allen, 67; Tyson v. Booth, 100 Mass. 258, Bonino v. Caledonio, 144 Mass. 299, 11 N.E. 98. It is also said in 2 Sedgwick, 7th Ed., 521: "If, making due allowance for the infirmities of human temper, the defendant has reasonable excuse for the violation of public order, then there is no foundation for exemplary damages, and the plaintiff can claim only compensation. it is merely the corollary of this, that when there is a reasonable excuse for the defendant, arising from the provocation or fault of the plaintiff, but not sufficient entirely to justify the act done, there can be no exemplary damages, and the circumstances of mitigation must be applied to the actual damages. If it were not so the plaintiff would get full compensation for damages occasioned by himself. The rule ought to be and is, practically, mutual. Malice and provocation in the defendant are punished by inflicting damages exceeding the measure of compensation, and in the plaintiff by giving him less than that measure. "

In Burke v. Melvin, 45 Conn. 243, Park, Ch. J., held that the whole transaction should go to the jury. "They could not ascertain what amount of damages the plaintiff was entitled to receive by considering a part of the transaction. They must look at the whole of it. They must ascertain how far the plaintiff was in fault, if in fault at all, and how far the defendant, and give damages accordingly. The difference between a provoked and an unprovoked assault is obvious. The latter would deserve punishment beyond the actual damages, while the damages in the other case would be attributable, in a great measure, to the misconduct of the plaintiff himself." In Bartram v. Stone, 31 Conn. 159, it was held that in an action for assault and battery the defendant might prove, in mitigation of damages, that the plaintiff, immediately before the assault, charged him with a crime, and that his assault upon the plaintiff was occasioned by "sudden heat" produced by the plaintiff's false accusation. See also Richardson v. Hine, 42 Conn. 206.

In Kiff v. Youmans, 86 N.Y. 324, the plaintiff was upon defendant's premises for the purpose of committing a trespass, and the defendant assaulted him to prevent the act, and the only question was whether he used unnecessary force. Danforth, J., said: "It still remains that the plaintiff provoked the trespass, was himself guilty of the act which led to the disturbance of the public peace. Although this provocation fails to justify the defendant, it may be relied upon by him in mitigation even of compensatory damages. This doctrine is as old as the action of trespass, and is correlative to the rule which permits circumstances of aggravation, such as time and place of an assault, or insulting words, or other circumstances of indignity and contumely to increase them."

In Robison v. Rupert, 23 Pa. 523, the same rule is adopted, the court saying: "Where there is a reasonable excuse for the defendant, arising from the provocation or fault of the plaintiff, but not sufficient to entirely justify the act done, there can be no exemplary damages, and the circumstances of mitigation must be applied to the actual damages."

In Ireland v. Elliott, 5 Iowa 478, the court said: "The farthest that the law has gone, and the farthest that it can go, whilst attempting to maintain a rule, is to permit the high provocation of language to be shown as a palliation for the acts and results of anger; that is, in legal phrase, to be shown in mitigation of damages."

In Thrall v. Knapp, 17 Iowa 468, the court said: "The clear distinction is this: contemporaneous provocation of words or acts are admissible, but previous provocations are not, and the test is, whether, "the blood has had time to cool."' * * * "The law affords a redress for every injury. If the plaintiff slandered defendant's daughters, it would entirely accord with his natural feelings to chastise him; but the policy of the law is against his right to do so, especially after time for reflection. It affords a peaceful remedy. On the other hand the law so completely disfavors violence, and so jealously guards alike individual rights and the public peace that, if a man gives another a cuff on the ear, though it cost him nothing, no, not so much as a little diachylon, yet he shall have his action." Per Lord Holt, 2d Ld. Raym. 955. The reasoning of the court seems to make against his rule that provocations such as happen at the time of the assault may be received in evidence to reduce the amount of the plaintiff's recovery.

In Morely and Wife v. Dunbar, 24 Wis. 183, Dixon, Ch. J., held, that notwithstanding what was said in Birchard v. Booth, 4 Wis. 67, circumstances of provocation attending the transaction, or so recent as to constitute a part of the res gestae, though not sufficient entirely to justify the act done, may constitute an excuse that may mitigate the actual damages; and, where the provocation is great and calculated to excite strong feelings of resentment, may reduce them to a sum which is merely nominal. But in Wilson v. Young, 31 Wis. 574, it was held by a majority of the court that provocation could go to reduce compensatory damages only so far as these should be given for injury to the feelings, Dixon, Ch. J., however, adhering to the rule in Moreley v. Dunbar, that it might go to reduce all compensatory damages; but in Fenelon v. Butts, 53 Wis. 344, 10 N.W. 501, and in Corcoran v. Harran, 55 Wis. 120, 12 N.W. 468, it was clearly held that personal abuse of the assailant by the party assaulted may be considered in mitigation of punitory, but not of actual damages, which include those allowed for mental and bodily suffering; that a man commencing an assault and battery under such circumstances of provocation is liable for the actual damages which result from such assault.

In Donnelly v. Harris et al., 41 Ill. 126, the court instructed the jury that words spoken might be considered in mitigation of damages. Walker, Ch. J., in delivering the opinion of the Supreme Court remarked: "Had this...