
    John R. Shook v. Walter C. Peters.
    (Case No. 4827.)
    1. Pleading.— See statement o£ case for allegations in a petition to recover damages-for personal injuries wrongfully inflicted, held sufficiently certain.
    2. Evidence — Reconvention.— A former malicious prosecution by the plaintiff of the defendant will not afford matter of defense to an action by plaintiff to recover damages claimed for personal injuries inflicted by an assault, nor con injury to defendant resulting from such action be pleaded in reconvention against the suit for damages.
    3. -Evidence — Pleading.— All facts proper to be considered in mitigation of damages, in an action to recover damages, are admissible under a general denial.
    4. Evidence.— A verdict of not guilty in a criminal prosecution for an assault is nob admissible in defense to an action for damages caused by the assault. But a conviction and payment of fine might be shown in mitigation of exemplary damages, if pleaded.
    5. Evidence.— In a suit for damages for personal injuries inflicted by an assault, the parties were unknown to each other until the time when the assault was committed; there being direct evidence of the assault and battery by the defendant, evidence of the former character of plaintiff for turbulence was properly excluded.
    6. Exemplary damages.— In such a suit a charge “ that if the striking was done wantonly and without justification, ” etc., the jury might find exemplary damages, is not subject to the objection that it conveys the idea that the words “ wantonly ” and “ without justification ” are in contemplation of law synonymous. Such a charge conveys in apt words the idea that the act must not only have been wanton, but also without justification, to authorize a verdict for exemplary damages.
    7. Damages — Charge oe court.— When actual and exemplary damages are claimed, though the jury should be charged to distinguish between them in their verdict, a failure to so charge will not be ground for reversal if there be no request to so charge.
    8. Newly discovered evidence.— See opinion for circumstances under which a> new trial will not be granted for newly discovered evidence.
    9. Damages.— See statement of case for facts on which the court refused to reverse on account of excessive damages.
    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. lie charged that the assault which produced the injury was made by defendant without provocation, maliciously, and with in; ent 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 1o 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. Thai; he had to pay doctors and drug bills, and has lost in his busine ss in various ways. That he had to paya 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 acguit, 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; MeKinzie 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. Anns, 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 or mitigation of damages, actual or exemplary.

If there had been a conviction upon the criminal charge, and the fine paid or the punishment suffered, that might be shown in mitigation of exemplary damages; but no'such thing is pleaded. Flanagan v. Womack & Perry, 54 Tex., 46; Field on Damages, 122. There being direct proof before the court as to the battery, it is not perceived that the court erred in. refusing to admit evidence of. the character of the plaintiff, and especially so as it appears from the evidence that the plaintiff was unknown to the defendant, and he could not, therefore, have been influenced in his conduct by anything other than what occurred at the time of the battery, and what he had previously learned in reference to the treatment of his son.

It is urged that the court erred in. instructing the jury “ that, if the striking was done wantonly and without justification, the jurjr might find, in addition to the actual damages sustained, such sum as may be deemed adequate as exemplary or punitory damages;” and this upon the ground that the charge was misleading in that it gave the jury to understand that the terms “ wantonly ” and “ without justification ” were synonymous. Such could not have been the effect of the charge; but, on the contrary, its effect was that the act must have been not only wanton, but also without justification.

At the request of the defendant, the court clearly instructed the jury as to the facts which they must find to authorize a verdict for the plaintiff, and it was not error to refuse to emphasize the charge thus given, by instructing the jury that, unless such facts were proved, they could not find for the plaintiff more than nominal damages.

It is true that, in a case in which a plaintiff claims damages actual and exemplary, the jury should he instructed to separate the one from the other in their verdict: but a failure of the court so to charge is not cause for reversing a judgment, if the charge be otherwise correct and no request is made to the court for a charge upon that matter.

Parties who are of the opinion that a charge is not so full as it might be ought to ask such additional instructions as they think proper. This is due to the court and to themselves.

There was no error in refusing to grant a new trial on account of the newly discovered testimony, for had it been proved that the plaintiff “ kicked ” the defendant’s son out of the ice-house, it would not have been to him a justification for the battery upon the plaintiff; and in so far as the motive of the defendant in making the battery might be inquired into, all of the uncontradicted evidence shows that he acted upon the honest belief that his child had been “kicked ” ■and otherwise mistreated by the plaintiff.

The provocation, real or supposed, was very great, and no doubt the jury took all of the attendant facts and circumstances into consideration in determining the right of the plaintiff to compensation, and as to the amount thereof; and looking to the testimony in regard to the character of the injury, we are unable to say that the jury gave the plaintiff a larger sum than the evidence justified for ■the actual damage received.

The case was one, from the standpoint of the defendant, of great provocation to him, but it was one in which a jury would most probably give full force to all the mitigating circumstances; and while, if the jury had given a less sum, or had found for the defendant, their verdict could not have been disturbed, yet we cannot say that the judgment is excessive. Finding no error in the judgment which requires its reversal, it must be and is affirmed.

Affirmed.

[Opinion delivered May 4, 1883.]  