Smithwick v. Ward
| Decision Date | 31 December 1859 |
| Citation | 52 N.C. 64,7 Jones 64,75 Am.Dec. 453 |
| Court | North Carolina Supreme Court |
| Parties | WILLIAM SMITHWICK v. TIMOTHY W. WARD et al. |
On the trial of a civil action for assault and battery, it is competent, for the purpose of mitigating vindictive damages, to show that the defendant has been convicted and punished at the suit of the State for the same transaction.
It is not competent in such a suit, to prove that the plaintiff is a turbulent man and of desperate disposition; nor that the defendant is a quiet man and of peaceful demeanor.
Where there is a common intent among several to beat an adversary, or where the parties are all present, aiding, abetting or encouraging, or have become principals by previously counselling the violence, a joint verdict against all, is proper.
An instrument, in writing, purporting to release to one of the parties to a suit for assault and battery, all claim and demand on him in that suit, but not having a seal, cannot operate as a release.
A release to party to a suit, made during its pendency and after the issues are joined, cannot operate as a defense, unless it be pleaded specially since the last continuance.
ACTION for ASSAULT AND BATTERY, tried before SHEPHERD, J., at the last Fall Term of Martin Superior Court.
The plaintiff obtained a verdict. Four exceptions were taken on the trial below and certified to this Court.
1st. The defendants offered to prove, on the question of “vindictive damages,” that they had been convicted of an assault and battery, and had been fined by the County Court of Martin, which the Court rejected as irrelevant.
2nd. The defendants offered to prove, that the plaintiff is a man of turbulent and desperate disposition, and that they are men of quiet and peaceful demeanor, which the Court rejected.
3rd. The defendants asked the Court to charge, that they might sever in the damages--giving damages against each according to the degree of his guilt, which the Court declined, and instructed the jury, that if they should find against more than one of the defendants, their verdict should be joint.
The defendants offered a paper, without a seal, as a release, executed by the plaintiff to one L. L. Clements, who was sued and afterwards discharged; which said paper-writing is as follows:
“I hereby release L. L. Clements from all claim or demand on him in this suit, (naming it) and direct a nonsuit as to him, upon his paying his part of the court costs.” Signed by the plaintiff.
The costs were paid according to the stipulation, and the nonsuit entered. This instrument was given after the suit had been commenced and put at issue; but it was not pleaded since the last continuance.
The defendants insisted that this was a release, properly pleaded, and discharged all the defendants. The Court held otherwise.
These exceptions being overruled, the plaintiff had judgment, and the defendants appealed to the Supreme Court.
Rodman and Warren, for the plaintiff .
Winston, Jr., for the defendants .
The exceptions taken on the trial below, are stated in the record with distinctness, and we have duly considered them in this Court. The only one, about which we have had any difficulty, is the ruling by the Court, that the conviction and punishment, criminally, for the offense, was irrelevant, and not proper to be considered in abatement of the demand for vindictive damages. The word “vindictive,” here adopted, is in common professional and legislative use as a synonym of vindicatory or punitory, and in that sense, we suppose it is used in the record. This element, in the estimate of damages, is allowed, to punish the defendants for violating the laws, and by making them smart to deter others as well as themselves from similar violations.
The principle upon which society acts in punishing criminally, is precisely the same. The public never is actuated by revenge, but solely by a motive of self-protection, and punishes to prevent a repetition of the offense by the culprit, or its perpetration by others.
These considerations suggest the pertinency and propriety of the evidence offered. When the enquiry is made by the jury, in a civil action, how much ought to be given for smart money,...
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...175 N.C. 132, 95 S.E. 92; Fields v. Bynum, 156 N.C. 413, 72 S.E. 449; Hayes v. Railroad. 141 N.C. 199, 53 S.E. 847; Smithwick v. Ward, 52 N.C. 64, 75 Am. Dec. 453. However, the amount of punitive damages, while resting in sound discretion of the jury, may not be excessively disproportionate......
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...Ann. Cas. 1914A, 1253; Cobb v. Railroad Co., 175 N.C. 132, 95 S.E. 92; Hayes v. Railroad Co., 141 N.C. 199, 53 S.E. 847; Smithwick v. Ward, 52 N.C. 64, 75 Am. Dec. 453; Bowden v. Bailes, 101 N.C. 612, 8 S.E. Cotton v. Fisheries Products Co., 181 N.C. 151, 106 S.E. 487. The court, by Justice......
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