Shook v. Peters

• Decision Date: 04 May 1883
• Docket Number: Case No. 4827.
• Citation: 59 Tex. 393
• Court: Texas Supreme Court
• Parties: JOHN R. SHOOK v. WALTER C. PETERS.

59 Tex. 393

JOHN R. SHOOK

v.WALTER C. PETERS.

Case No. 4827.

Supreme Court of Texas.

May 4, 1883.

APPEAL from Bexar. Tried below before the Hon. Geo. H. Noonan.

Suit by Peters against Shook to recover damages for personal injuries inflicted on plaintiff by defendant. He charged that the assault which produced the injury was made by defendant without provocation, maliciously, and with intent to injure. He claimed for mental and physical anguish, caused directly by the assault, $5,000; trouble, expense, medical attendance and nursing during illness, from same cause, $1,000; loss of time and from work for one year, caused by the battery, $3,000; punitory and exemplary damages, $9,000.

Exceptions to petition overruled.

Answer denying the allegations of the plaintiff's petition, pleading not guilty, and specially answering that the appellant had been informed that the appellee had made an assault upon his child of the age of twelve years immediately before he saw appellee; that appellee at that time had attempted to make an assault upon appellant, and that appellant, to defend himself against attack, had struck appellee; that, upon a criminal charge preferred by appellee, and in a trial upon the merits for the same act, he had been fully acquitted, and that in and by said trial he had been put to great expense and damage in the sum of $600.

Motion to strike out answer, which the court sustained as to that part setting up autrefois acquit and counter damage.

Judgment was rendered for appellee for $1,000.

It appeared that the parties were not acquainted until the difficulty; that the defendant sought the plaintiff on being informed that plaintiff had kicked his little son. Testimony as to what occurred when the parties met was conflicting, but there was evidence showing that defendant had sought the plaintiff with a view of punishing him for kicking his boy, and that the first hostile demonstration was a blow by defendant, which knocked plaintiff senseless.

The witness J. H. Smye testified that, prior to the time appellee was struck by appellant, appellee was capable of laboring and earning good wages; that since then his capacity is not near so good. That appellee was an able and skilled workman; that the skill remains, but the ability to labor and the value of his work decreased. That his services are a great deal less advantageous than they were before the assault, and other labor has to be employed to assist in the performance of what he did before. Witness Peters testified that he could not do more than a half or a quarter of the work that he could do before the assault. That he had to pay doctors and drug bills, and has lost in his business in various ways. That he had to pay a mechanic $3 a day to do the work that he had formerly done. That his business before the assault had brought him in from $2,500 to $3,000 per year. That he had been paid from $250 to $260 per month for his work, and that since he was struck he had been able to do very little.

T. J. Devine, A. Dittmar and Diggs & Aubrey, for appellant, cited, on admission of plea of autrefois acquit, Fay v. Parker, 53 N. H., 342; S. C., 16 Am., 273; Boyer v. Barr, 8 Neb., 68; S. C., 30 Am., 816; Harper v. Cowden, 27 Ohio St., 292; S. C., 22 Am., 303; Taber v. Hutson, 5 Ind., 322;Albrecht v. Walker, 73 Ill., 69;Koerner v. Oberly, 56 Ind., 284; S. C., 26 Am., 34; Huber v. Teaber, 3 MacArth. (D. C.), 484; 36 Am., 110; Roose v. Perkins, 9 Neb., 304; S. C., 31 Am., 409; Freese v. Tripp, 70 Ill., 496;Meidel v. Anthis, 71 Ill., 241; Stowe v. Heywood, 7 Allen, 118; Storall v. Smith, 4 B. Mon., 378; Cherry v. McCall, 23 Ga., 193; Butler v. Mercer, 14 Ind., 479; Porter v. Seiles, 23 Pa. St., 424; Smithwick v. Ward, 7 Jones Law (N. C.), 64; Smith v. Holcomb, 99 Mass., 552.

On admissibility of evidence of plaintiff's turbulent character, Sedgw. on Dam., 688; 24 Wis., 183; Rhodes v. Bunch, 3 McC., 66; McKinzie v. Allen, 3 Strobh., 546; 1 Suth. Dam., 253; Horbach v. State, 43 Tex., 242.

On the charge about striking “wantonly and without justification,” G., H. & S. A. R. R. v. Dunlavy, 56 Tex., 256;Cotton Press v. Bradly, 52 Tex., 600;Milwaukee R. R. Co. v. Arms, 1 Otto, 495; H. & T. C. R. R. Co. v. Nixon, 52 Tex., 25; R. R. Co. v. Le Gierse, 51 Tex., 204;Pierce v. Randolph, 12 Tex., 295.

Houston Bros., for appellee.

STAYTON, ASSOCIATE JUSTICE.

The petition alleged the injury and the damage resulting therefrom with as much certainty as the nature of the case would probably permit, and the court did not err in overruling the demurrer thereto.

If the defendant committed a battery upon the plaintiff, the fact that the plaintiff may have subsequently instituted a malicious prosecution against him would not furnish to the defendant any defense to an action instituted by the plaintiff to recover damages done to him by the battery, nor could any damage to the defendant resulting from such malicious prosecution be pleaded in reconvention in this action. Hart v. Davis, 21 Tex., 411; Waterman on Set-off, 123.

Under the general denial all mitigating facts are admissible in evidence. The two matters have no such connection as authorized the setting up of the one as a defense to the other. This action is based upon the battery by defendant upon the plaintiff; the matter sought to be set up in defense is based upon an alleged malicious prosecution subsequently instituted by the plaintiff against the defendant. Art. 650, R. S., has no reference to such separate and distinct causes of action. The fact that, upon a criminal accusation against the defendant for the battery which is the basis of plaintiff's claim for damages in this cause, the defendant was acquitted, furnishes no defense to the present action, nor could such matter go in bar...