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tion, under a per quod.1 Of these, the loss of the society of his wife, or of the services of his servant, are examples.2 The relation of husband and wife is proved in such cases, by evidence of a marriage de facto. If the action is for assaulting and beating the plaintiff's son,3 or for seducing his daughter, per quod, it is sufficient to show that the child lived in the parent's family, without proof of actual service; or, if the child lived in a neighbor's family, it is sufficient to prove that he also daily and ordinarily performed services for the parent. If the daughter is emancipated, and resides apart from the parent's family, the parent cannot recover. But if the daughter actually resides with her father, even though she be a married woman, if she lives apart from her husband, the father may maintain the action. In all these cases, it is sufficient to prove the relation of master and servant de facto; and proof of very slight acts of service is sufficient.

§ 89. Same subject. It is not, however, necessary to state specially any matters which are the legal and natural consequence of the tortious act; for all such consequences of his own actions every man is presumed to anticipate; and as one of the objects of the rule, which requires particularity of averment in pleading, is, to give the other party notice that he may come prepared to meet the charge, such particularity is in these cases superfluous. The plaintiff, therefore, under the usual allegation of assault and battery, may give evidence of any damages naturally and necessarily resulting from the act complained of. But where the law does not imply the damage, as the natural and

1 Pettit v. Addington, Peake's Cas. 62. But the plaintiff cannot recover in this form for injury for which a separate action lies, either by himself or by another. 1 Chitty on Pl. 347-349; Wallace v. Hardacre, 1 Campb. 45, 49; Bull. N. P. 89. 2 Guy v. Livesey, Cro. Jac. 501; Woodward v. Walton, 2 New Rep. 476; 9 Co. 113 a; Ream v. Rank, 3 S. & R. 215.

8 Jones v. Brown, Peake's Cas. 233; s. c. 1 Esp. 217.

Maunder v. Venn, 1 M. & Malk. 323; Mann v. Barratt, 6 Esp. 32.

61 Steph, N. P. 214.

6 Dean v. Peel, 5 East, 45; Anon., 1 Smith, 333; Postlethwaite v. Parkes, 3 Burr. 1878. If the daughter, being under age, is actually in the service of another, but the father has not devested himself of his right to reclaim her services, it has been held, that he may maintain this action. Martin v. Payne, 9 Johns. 387. See infra, tit. Seduction.

7 Harper v. Luffkin, 7 B. & C. 387.

8 Fores v. Wilson, Peake's Cas. 55; Bennett v. Alcott, 2 T. R. 166; Manvell v. Thomson, 2 C. & P. 303; Irwin v. Dearman, 11 East, 23: Nickleson v. Striker, 10 Johns. 115. See also 1 Chitty on Pl. 50.

Moore v. Adam, 2 Chitty, 198, per Bailey, J.; 1 Chitty on Pl. 346. The plaintiff may recover for the damage he is likely to sustain, after the trial, as the natural consequence of the injury; because, for these damages, he can have no other action. Fetter v. Beale, 1 Ld. Raym. 339; s. c. 2 Salk. 11.

necessary consequence of the assault and battery, it should be set forth with particularity; such, for example, as the general loss of health, or the contracting of a contagious disease, or being stinted in allowance of food, in an action for an assault and false imprisonment; or an injury to his clothes, in a personal rencounter and the like. The manner, motives, place, and circumstances of the assault, however, though tending to increase the damages, need not be specially stated, but may be shown in evidence. Thus, where the battery was committed in the house of the plaintiff, which the defendant rudely entered, knowing that the plaintiff's daughter-in-law was there sick and in travail, evidence of this fact was held admissible without a particular averment. Nor are the jury confined to the mere corporal injury which the plaintiff has sustained; but they are at liberty to consider the malice of the defendant, the insulting character of his conduct, the rank in life of the several parties, and all the circumstances of the outrage, and thereupon to award such exemplary damages as the circumstances may in their judgment require.3 (a)

§ 90. Conviction. Confession. In proof of the trespass, the plaintiff may give in evidence a conviction of the defendant upon an indictment for the same offence, provided the conviction was upon the plea of guilty; but not otherwise.4 (b) And if it was a joint trespass by several, the confessions and admissions of any of them, made during the pendency of the enterprise and in furtherance of the common design, may be given in evidence against the others, after a foundation has been laid by proving the fact of conspiracy by them all to perpetrate the offence.5

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1 Chitty on Pl. 346, 347; Lowden v. ton, Id. 62; Avery v. Ray, 1 Mass. 12. 2 Sampson v. Henry, 11 Pick. 379. Merest v. Harvey, 5 Taunt. 442. Heath, J., in this case, remarked, that "it goes to prevent the practice of duelling, if juries are permitted to punish insult by exemplary damages.' Wade v. Thayer, 40 Cal. 585; Bracegirdle v. Oxford, 2 M. & S. 77; Tullidge v. Wade, 3 Wils. 19; Davenport v. Russell, 5 Day, 145; Shafer v. Smith, 7 Har. & T. 67. Previous threats of the defendant, in the presence of the plaintiff, may also be shown. Sledge v. Pope, 2 Hayw. 402. See infra, tit. Damages, §§ 253, 267, &c.; McNamara v. King, 2 Gilm. 432; Reed v. Davis, 4 Pick. 216. Ante, vol. i. § 537, n.; Reg. v. Moreau, 12 Jur. 626. 5 Ante, vol. i. § 111.

Goodrick, Peake's Cas. 46; Pettit v. Adding-
See infra, tit. Damages, §§ 253, 255.

(a) Exemplary damages may be given, notwithstanding the defendant has been proceeded against criminally. Hoadley v. Watson, 45 Vt. 289; Corwin v. Walton, 18 Mo. 71. See also post, § 266 et seq.

And the amount of the fine paid by him
should not be considered in the civil ac-
tion. Reddin v. Gates, 52 Iowa, 210.
(b) Corwin v. Walton, 18 Mo. 71.

§ 91. Averment of alia enormia. The alia enormia is an averment not essential to the declaration for an assault and battery; its office is merely to enable the plaintiff to give in evidence under it such circumstances belonging to the transaction as could not conveniently be stated on the record. Things which naturally result from the act complained of may, as we have seen, be shown under the other averments.

§ 92. Matters of defence. Matters of defence in this action are usually distributed under three heads; namely: first, Inficiation, or denial of the fact, which is done only by the plea of not guilty; secondly, Excuse, which is an admission of the fact, but saying it was done accidentally, or by superior agency, and without any fault of the defendant; and this may be either specially pleaded, or given in evidence under the general issue; and, thirdly, Justi fication, which must always be specially pleaded.2 To these may be added matters in discharge, such as a release, accord and satisfaction, arbitrament, former recovery, the statute of limitations, and the like, which also must be specially pleaded.3 But it should be observed that these rules apply only to suits against private persons. For, where actions are brought against public officers, for acts done by virtue of their office, they are permitted by statutes to plead the general issue, with a brief statement in writing of the special matter of justification to be given in evidence.

§ 93. What provable under general issue. Under the general issue, the defendant, in mitigation of damages, may give in evidence a provocation by the plaintiff, provided it was so recent and immediate as to induce a presumption that the violence was committed under the immediate influence of the passion thus wrongfully excited by the plaintiff. (a) Indeed, the defendant, in

1 1 Chitty on Pl. 348; Lowden v. Goodrick, Peake's Cas. 45. See infra, tit. Damages, § 276; supra, § 85.

2 Bull. N. P. 17.

8 Chitty on Pl. 441.

Dennis v. Pawling, 12 Vin. Abr. 159, tit. Evid. 1, b, pl. 16, per Price, B.; Lee v. Woolsey, 19 Johns. 319; Cushman v. Waddell, 1 Bald. 58; Avery v. Ray, 1 Mass. 12; Matthews v. Terry, 10 Conn. 455; Fullerton v. Warrick, 3 Black f. 219; Anderson v. Johnson, 3 Har. & J. 162. In Fraser v. Berkley, 2 M. & Rob. 3, Lord Abinger admitted evidence of provocation; namely, a libel published some time previous to the battery.

(a) The fact that the evidence of provocation, which the defendant wishes to use in mitigation of damages, was offered to prove a justification of self-defence, which has failed, does not deprive the defendant

of the benefit of it. The jury, in estimating the damages, must ascertain from the whole evidence how far the plaintiff also was in fault, if in fault at all, as well as the defendant, and give damages accord

mitigation of damages, may, under this issue, rely on any part of the res gesta, though, if pleaded, it would have amounted to a justification; notwithstanding the general rule, that whatever is to be shown in justification must be specially pleaded; for everything which passed at the time is part of the transaction on which the plaintiff's action is founded, and therefore he could not be surprised by the evidence.1 And it is also laid down, as a general rule, that whatever cannot be pleaded may be given in evidence under this issue.2 Therefore, where the beating in question was by way of punishment for misbehavior on board a ship, and for the maintenance of necessary discipline, this evidence was held not admissible in mitigation of damages, because the facts might have been pleaded in justification. Where the action was for assault and false imprisonment, evidence of reasonable suspicion of felony has been held admissible, in mitigation of damages.1

§ 94. Unlawful intention essential. In the case of a mere assault, the quo animo is material, as, without an unlawful intention, there is no assault. Any evidence of intention, therefore, is admissible under the general issue.5 But in the case of a battery, innocence of intention is not material, except as it may go in mitigation of damages; unless it can be shown that the defendant was wholly free from fault; because every man who is not entirely free from all blame is responsible for any immediate injury done by him to the person of another, though it were not wilfully inflicted. Therefore, if the act of the defendant was done by inevitable necessity, as if it be caused by ungovernable brute force, his horse running

1 Bingham v. Garnault, Bull. N. P. 17.

2 2 B. & P. 224, n. (a).

8 Watson v. Christie, 2 B. & P. 224.

✦ Chinn v. Morris, 2 C. & P. 361; s. c. 1 Ry. & M. 324. The law of damages, in actions ex delicto, in regard to evidence in aggravation or mitigation, is treated with great ability and just discrimination, in an article in 3 Am. Jurist, pp. 287-313. Griffin v. Parsons, 1 Selw. N. P. 25, 26; supra, § 83.

ingly. Burke v. Melvin, 45 Conn. 243. Proof, however, of former controversies independent of the assault complained of, and not so recent as to be reasonably supposed to have provoked it, is not admissible. Richardson v. Hine, 42 Conn. 206; Collins v. Todd, 17 Mo. 537; Dolan v. Fagan, 63 Barb. (N. Y.) 73. It is wellsettled law that mere words do not constitute a sufficient provocation to justify an assault; but they may be given in evidence in mitigation of damages. Richardson v.

Zuntz, 26 La. Ann. 313: Rochester v. Anderson, 1 Bibb (Ky.), 428; Dolan v. Fagan, 63 Barb. (N. Y.) 73; Riddle v. State, 49 Ala. 389. Cf. Collins v. Todd, 17 Mo. 537. If libellous words are used by the plaintiff of the defendant, and some time afterward the plaintiff repeats the libel, and the defendant immediately thereafter commits the assault and battery complained of, this repetition of the words may be given in evidence in mitigation of damages. Davis v. Franke, 33 Gratt. (Va.) 413.

away with him without his fault; or, if a lighted squib is thrown upon him, and to save himself he strikes it off in a new direction,2 in these and the like cases the necessity may be shown under the general issue, in disproof of the battery. But if the plaintiff was himself guilty of incautious or improper conduct, he cannot recover, unless the case was such that, by the exercise of ordinary care, he could not have avoided the consequences of the defendant's neglect, (a) or was incapable by want of understanding or discretion of taking such care. In other words, the defendant is answerable only for those consequences which the plaintiff, by ordinary care, could not have prevented; the degree of care required of the plaintiff being limited by his capacity and circumstances.5

§ 95. Plea of son assault. Under the plea of son assault demesne, in excuse, with the general replication of de injuria, &c., the burden of proof is on the defendant, who will be bound to show that the plaintiff actually committed the first assault; and, also, that what was thereupon done on his own part, was in the necessary defence of his person." (b) And even violence may be justified where the safety of the person was actually endangered. (c) If the defendant's battery of the plaintiff was excessive beyond what was apparently necessary for self-defence, it seems by the American authorities, that this excess may be given in evidence under the replication of de injuria, without either a special replication or

1 Wakeman v. Robinson, 1 Bing. 213; Gibbons v. Pepper, 4 Mod. 404; 1 Salk. 637; Bull. N. P. 16; Hall v. Fearnley, 3 Ad. & El. N. s. 919; Vincent v. Stinehour, 7 Vt. 62.

2 Scott v. Shepherd, 3 Wils. 403. See also Beckwith v. Shordike, 4 Burr. 2092; Davis v. Saunders, 2 Chitty, 639; supra, § 85.

8 Davis v. Mann, 6 Jur. 954; s. c. 10 M. & W. 546; Kennard v. Burton, 12 Shepl. 39.

Lynch v. Nurdin, 1 Ad. & El. N. s. 29; 5 Jur. 797.

5 See Robinson v. Cone, 3 Am. Law J. N. s. 313, where the subject is fully considered by Redfield, J.

6 Crogate's Case, 8 Co. 66; Cockerill v. Armstrong, Willes, 99; Jones v. Kitchen, 1 B. & P. 79, 80; Reece v. Taylor, 4 Nev. & M. 469; Guy v. Kitchener, 2 Str. 1271; s. c. 1 Wils. 171; Phillips v. Howgate, 4 B. & Ald. 220; Timothy v. Simpson, 1 Cr. M. & R. 757.

292.

420.

7 Cockcroft v. Smith, 2 Salk. 642; Bull. N. P. 18.

(a) Brown v. Kendall, 6 Cush. (Mass.)

(b) Fitzgerald v. Fitzgerald, 51 Vt.

(c) If the defendant is guilty of an unreasonable and disproportionate degree of violence towards the person of another, he is liable for the excess, though he was act

ing in self-defence. In such cases the question is not merely whether the defendant was the assaulted party, and so had a right to repel the force by force, but also as to the degree of the beating, and its proportion to the assault of the plaintiff. Brown v. Gordon, 1 Gray (Mass.), 182; Close v. Cooper, 34 Ohio St. 98.

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