Shires v. Boggess

• Decision Date: 01 November 1910
• Citation: 69 S.E. 466,68 W.Va. 137
• Parties: SHIRES v. BOGGESS.
• Court: West Virginia Supreme Court

69 S.E. 466

(68 W.Va. 137)

SHIRES

v.BOGGESS.

Supreme Court of Appeals of West Virginia.

Nov. 1, 1910.

(Syllabus by the Court.)

1. Assault and Battery (§ 24^*)—Pleading —Defense of Son Assault Demesne.

The defense of son assault demesne must be pleaded specially, and cannot avail under the general issue, in an action for damages from an assault and battery.

[Ed. Note.—For other cases, see Assault and Battery, Cent. Dig. § 28; Dec. Dig. § 24.*]

2. Assault and Battery (§ 24*)—Pleading —Matters in Justification.

Matters in justification of an assault and battery, as defense to a suit for damages, must be pleaded specially. They cannot be given in evidence under the general issue.

[Ed. Note.—For other cases, see Assault and Battery, Cent. Dig. § 28; Dec. Dig. § 24.*]

3. Assault and Battery (§ 24*) — Issues — Confession of Valid Defense.

If a proper plea averring matters which legally justify the assault and battery made the basis of an action for damages is not replied to or controverted, a valid defense stands confessed, and no issue exists.

[Ed. Note.—For other cases, see Assault and Battery, Cent. Dig. § 30; Dec. Dig. § 24.*]

4. Judgment (§ 18*)—On Trial of Issues-Necessity for Issues.

It is the established law of this state that a judgment based on trial without joinder of issue is erroneous and reversible from want of issue alone.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 34; Dec. Dig. § 18.*]

Error from Circuit Court, Monroe County.

Action by Minerva Shires against W. R. Boggess. Judgment for plaintiff, and defendant brings error. Reversed, verdict set aside, and remanded.

Boggess & Boggess and T. N. Read, for plaintiff in error.

John W. Arbuckle, John Osborne, and R. L. Keadle, for defendant in error.

ROBINSON, P. In this action for damages from an assault and battery, the plaintiff, upon the verdict of a jury, has judgment against the defendant for two hundred dollars. We are asked to review the case and to reverse the judgment upon the ground that the case was tried without issue, and for other alleged errors.

The defendant pleaded the general issue and two special pleas of justification—son assault demesne. The two special pleas were not replied to or traversed by the plaintiff in any particular. No issue was joined on cither of them. The special pleas admitted the assault and battery but justified the alleged wrong. But, it is said that there was joinder on the general issue, that the mat ters of justification were triable under it, and that, therefore, the special pleas were immaterial and demanded no reply. Clearly, if the matters of justification were not within the general issue, the special pleas were proper. And if those pleas were material to assert matters of justification, there was no denial of the justification alleged, and there was, therefore, no issue to try. For, the defendant admitted the assault and battery, and the asserted justification under the law of self defense was a complete bar to the action so long as there was no reply in that regard. Without reply—without issue on the special pleas—the cause of action was completely answered. The plaintiff's suit was at an end until those pleas were controverted. Then, were the matters in justification only pleadable specially? Or did the general issue include those matters and bring them to trial?

It is well settled that matters in justification of an assault and battery are not within the general issue and must be pleaded specially, in an action for damages. Hogg's PI. & Forms, § 245; Shipman's Common Law Pleading, 290. The following expressions from other authorities are in point: "In all cases of justification, the defendant must plead the matter of defence specially. Thus he must always plead the defence of son assault demesne, and however justifiable he may have been in the battery, he cannot, on the plea of not guilty, give evidence of his justification; for that admits the act which his plea denies." 2 Tucker's Com. 54. "Under a mere general denial, the defendant cannot introduce evidence tending to prove a justification of the assault." 2 Enc. PI. and Pr. 862. "Matters of justification cannot be given in evidence under the general issue but must be pleaded specially." 3 Cyc, title Assault and Battery, 1084.

So we observe that the general issue did not suffice to put the alleged matters of justification to trial, and that proper special pleas alleging these matters stood confessed, because those pleas were not controverted. Since the matters of justification stood confessed there was nothing to try. The alleged wrong was excused. There was no issue in the case. There could be no legal trial. Therefore, the judgment cannot stand.

The plaintiff's brief characterizes as technicality the point that there was no issue, since the parties proceeded to trial as though on an issue joined. Whatever the overthrow of a judgment on the ground that there was no issue may be rightly termed, it is certainly the established law of this state that a judgment without joinder of issue will be reversed and set aside, because of the want of issue alone. It may be true that parties who acquiesce in trial without a formal issue should be estopped from raising the point after verdict, as is held in some juris-dictions. But that is not our law. The decisions of this court, and of Virginia prior to the formation of this state, recognize the doctrine that any judgment without issue is reversible, regardless of acquiescence in the trial or fault for the absent issue, and though the point is raised only after verdict. It is our province to declare the law as we find it. We would not be warranted in overturning a long existing rule, founded on principles of the common law, as this one is. The Legislature may do so. But we are guided not by policy as that law-making body is. We must look to what the law actually is, not to what it ought to be.

The rule, that a judgment based on trial without joinder of issue is erroneous and reversible from want of issue alone, is firmly fixed in our jurisprudence. In 8 Enc. Dig. Va. & W. Va. Rep. 295, the many cases involving the rule are cited, and there it is said: "Where trials by jury have been had without issue joined they have invariably been set aside as wholly unauthorized by law. This has been repeatedly held in Virginia before and in West...