Shires v. Boggess
| Decision Date | 25 February 1913 |
| Citation | 77 S.E. 542,72 W.Va. 109 |
| Parties | SHIRES v. BOGGESS. |
| Court | West Virginia Supreme Court |
Submitted September 6, 1912.
Syllabus by the Court.
The demurrer to the declaration in this case was properly overruled.
A declaration may be amended, during the trial and before verdict, by filling in blanks, if substantial justice will thereby be promoted.
When so amended the declaration, so far as the statute of limitations is concerned, will have the same effect as if it had been originally filed in the amended form at the commencement of the suit.
A plaintiff need not reply specially to defendant's special pleas, unless he cannot deny all the averments of the plea and wishes to admit the truth of some of them and to avoid the effect of his admissions.
Binding instructions which ignore the theories of defense, or narrow its scope covered by the evidence, are bad. They must be broad enough to present all material phases of the issues to which they relate, and must submit conflicting theories.
Instructions which ignore the essential elements of malice, and, if not in express words, by plain implication, tell the jury to find not only compensatory damages, but punitive damages, limited only by the amount sued for, are too broad in terms and give too wide a scope to the jury in assessing damages.
Instructions for defendant, intended to cover his theories of defense, and which his evidence tends to support, namely, that he was assaulted by plaintiff, in his own dwelling house or castle and was not required to retreat, but had the right to stand and defend himself, and to repel his assailant, using such force as then appeared to him to be reasonably necessary to accomplish his purpose, if he then had the right to believe and did believe plaintiff intended to do him some bodily harm, were erroneously modified by interpolation of the word "great" before the words "bodily harm" employed therein.
One in his own house need not stand and take without resisting with force even slight assaults of an intruder or trespasser, and until he believes or has reason to believe that he is about to sustain some great bodily harm. But he must not use force disproportioned to that used against him, and may not use a deadly weapon unless his own life is imperiled or it is necessary to ward off great bodily harm.
Instructions for defendant treating plaintiff as a trespasser and the first to make assault, and proposing to tell the jury, that if so assaulted in his own house defendant had the right to defend himself and to eject plaintiff, using such force as appeared to him at the time necessary to accomplish his purpose, and that plaintiff could not recover, are bad, for not limiting defendant to such reasonable force as was proportioned to the injury attempted or inflicted upon him, and were properly refused.
(Additional Syllabus by Editorial Staff.)
The words "great bodily harm" usually imply an injury of a greater and more serious character than battery (citing 4 Words and Phrases, 3162).
The refusal of an instruction substantially covered by one already given is not error.
In an action for assault and battery, the rejection of the record of the indictment, verdict of the jury, and judgment acquitting defendant of the assault involved was not error.
A judgment, in an action for assault and battery, for the sum found by the jury, with interest, subject to a credit of $122.20, costs recovered by defendant in the Supreme Court on a former hearing, "less the amount advanced by plaintiff in this cause," is erroneous for uncertainty.
Error to Circuit Court, Monroe County.
Action by Minerva Shires against W. R. Boggess. Judgment for plaintiff, and defendant brings error. Reversed.
Boggess & Boggess and T. N. Read, all of Hinton, and Russell S. Ritz of Bluefield, for plaintiff in error.
John W. Arbuckle, of Lewisburg, R. L. Keadle, of Union, and G. C. Osborne, of Keenan, for defendant in error.
We have this case before us for the second time. Formerly we reversed the judgment and remanded the case for a new trial. 68 W.Va. 137, 69 S.E. 466.
The declaration is good in form, and the demurrer was properly overruled. The first assignment of error is, therefore, without merit.
The next point is that during the trial, the court permitted plaintiff to amend her declaration, by inserting in the two blank spaces the figures "$50.00," covering, first, the amount necessarily laid out and expended in endeavoring to be cured; second, the amount necessarily laid out and expended for nurses while she was sick, sore and lame from defendant's alleged assault and bruises. We see no abuse of discretion in permitting these amendments, and none is pointed out. Section 8, chapter 131, Code, permits such amendments if substantial justice will be promoted thereby; but if it is made to appear that a
continuance is thereby rendered necessary such continuance should be granted. Our case of Travis v. Peabody Ins. Co., 28 W.Va. 583, says that, irrespective of statute, courts should permit amendments of pleadings at any time before verdict, on proper terms and if substantial justice so requires. To same effect are Tabb v. Gregory, 4 Call (Va.) 225, and Anderson v. Dudley, 5 Call (Va.) 529. It has been distinctly decided that a declaration may be amended in this way by filling blanks when the court has jurisdiction of the case. Burleigh & Co. v. Merrill, 49 N.H. 35. No request was made for a continuance by reason of the amendments, which consisted simply of filling the blanks. If a continuance was desired, the least that could have been required of defendant was to move the court to do so.
It is argued that defendant was prejudiced by the amendment because at the time the statute of limitations would have barred action on the items covered by the amendment. But the items were covered by averments, except for the omission to fill the blanks. The authorities say that when an amendment to a declaration is properly allowed, according to the rule stated, so far as the statute of limitations is concerned, it will have the same effect as if it had been originally filed in the amended form at the commencement of the suit. Kuhn v. Brownfield, 34 W.Va. 252, 12 S.E. 519, 11 L. R. A. 700; Lamb v. Cecil, 28 W.Va. 653. No plea of the statute of limitations was tendered.
A third point is that plaintiff did not reply specially to defendant's special pleas. On the last trial there were general replications to these pleas and issue thereon. The rule is that plaintiff need not reply specially unless he cannot deny all the averments of the plea and wishes to admit the truth of some of them and to avoid the effect of his admissions. Hunt v. Di Bacco, 69 W.Va. 449, 71 S.E. 584.
Next, we are required to deal with instructions to the jury, given and refused. Plaintiff's instructions number 5 and 8 are first complained of. Number 5 told the jury in substance, that if defendant used more force and inflicted greater injury upon plaintiff than was necessary for the protection of his person from injury, they should find for plaintiff and assess her damages at such sum as they might see fit not exceeding the amount sued for. No. 8 told them that if they believed from the evidence that the blow was struck and the injury inflicted upon plaintiff by defendant, not for the purpose of protecting his person from injury, but in retaliation for the blow previously struck by her, then the jury might find for plaintiff and assess her damages at whatever sum they might see fit, not exceeding $5,000.00, the sum sued for.
Three grounds of objection are urged. The first is that the instructions are binding, and ignore the several theories of defense interposed by defendant, and are in conflict with instructions given on his behalf and are misleading. One theory covered by special pleas was that plaintiff first assaulted defendant, and that he had the right to repel force with force, and that he had used only such force as from his age, condition, and circumstances reasonably appeared to him at the time to be necessary to prevent bodily harm being done him. Another theory was that plaintiff assaulted him in his own house or castle, and though a licensee to cross his lot to a spring to get water, having, as the testimony tended to show, first assaulted him, she became a trespasser ab initio, and that he had the right to eject her from his premises, using such force as to him at the time and under the circumstances and conditions surrounding him seemed reasonably necessary to accomplish the object.
The second ground applicable to both instructions is, that ignoring the essential elements of...
To continue reading
Request your trial