
    T. G. McGehee v. C. V. Shafer.
    That the plaintiff had endeavored to entice away the slave of the defendant, promising to return to carry out his purpose in a month, is no justification of a whipping inflicted upon the plaiutiff by the defendant in the meantime, and alleged to have been done for the purpose of deterring the plaintiff from carrying out his unlawful intent, although the same facts were admissible in extenuation of damages.
    It seems that matters which go ineroly in aggravation or in extenuation of damages need not bo pleaded; and if pleade.d, disconnected from a good cause of action or ground of defense, are subject to exceptions.
    In eases in which the jury are at liberty to expose exemplary damages anew trial will not be granted on the ground of excessive damages, unless they be so flagrantly excessive as to warrant the conclusion that the jury were actuated by passion, partiality, or prejudice. Where it was urged ns a ground for a new trial that one of the jurors had been a member of a grand jury which found a bill against the defendant for the same trespass, it was answered that the fact nowhere appeared, and that if there had been any objection to the competency of a juror, it should have been urged when the jury were impaneled, or the defendant should have reduced at least the evidence of his own affidavit to the fact that tiie objection to the juror was not then known to him.
    Where in support of a motion for a now trial it was proved that one of the jurors had been heard to remark previous to the trial that the plaintiff “would have friends at the trial “who would point out to him who would be iiis friends on that occasion,” the court said the remark was not deemed to afford evidence of partiality or prejudice, and that it should have been made (ho subject of challenge if known to the defendant; and it not known, the affidavit of the defendant to that effect at least should have been submitted in support of the motion. (Note 4.)
    Appeal from Caldwell. The appellee sued the appellant for a trespass committed by the latter upon the person of the former by the infliction of stripes.
    The defendant justifies the trespass, pleading- specially in bar of tiie action, in substance, that- the plaintiff on the night previous to tiie whipping, which lie admitted, had endeavored to entice away his negro, and had made an appointment to come and take him away two months thereafter, and that the whipping was necessary to prevent the contemplated injury- He also pleaded '• not guilty.”
    The plaintiff excepted to the special plea. The exceptions were sustained, hut the defendant was permitted to give in evidence the matters specially pleaded in mitigation of damages.
    It appeared that the plaintiff, wagoning upon the highway which led by the defendant’s residence, stopped at or near his house to pass the night; that in the night he had a conversation with the negro man of the defendant; that on the following morning the defendant collected some of his neighbors, pursued after and overtook the plaintiff, accused him of having endeavored to incite his negro to run away, or of having had a conversation with him about running away, and demanded a confession, which the plaintiff refused, protesting t hat he had done nothing wrong, and offered to go before, a magistrate; upon which the plaintiff cut switches or sticks, with which ho inflicted blows upon the back of the plaint iff, which he. continued for some time, stopping occasionally to repeat the demand of a confession. At length the plaintiff confessed that he had a conversation with the negro of the character charged by the defendant, when the latter desisted. During (.lie whipping the plaintiff fell down, and so remained until it ceased, lie was severely bruised ; lie called in a physician; and according to some of the witnesses was for some time disabled from attending to his affairs, though he was not confined, lint rode and walked about.
    The defendant proved that since the whipping the plaintiff publicly and on various occasions had admitted having conversed with the defendant’s negro on the night, previous about running away, and going to Germany, and being free, and had said that he would be along that, way with his wagon again in two months, whim lie would lake him away with him. But the plaintiff accompanied these admissions with (lie statement iliat he was hut jesting with tile negro.
    There was a verdict for the plaintiff for one thousand dollars [S3] damages, whereupon the defendant moved the court for a new trial on the following grounds: 1st, that the verdict was contrary to law and the evidence ; 2d, that the damages were excessive; 3d, that a juror, oue Hoskins, was also a member of the grand jury who had returned a true bill against the defendant for the same, assault and battery which is the subject of this suit, and that the juror was not impartial.
    In support of the motion the defendant submitted the affidavit of one Ilam-monds, who stated that previous to the trial of the cause he heard the juror Hoskins say that the plaintiff “ would have friends at the trial who would point out to him who would be liis friends on that occasion.”
    The court overruled the motion and gave judgment upon the verdict, and the defendant appealed. The errors assigned were,
    1st. The sustaining of the defendant’s exceptions to the defendant’s plea.
    2d. The overruling of the motion for a new trial.
    
      B. F. Caruthers, for appellant.
    
      C. O. McGinnis and A. J. Hamilton, for appellee.
   Wheeler, J.

It is clear that the matters specially pleaded by the defendant did not constitute in law a justification of the trespass committed by him or a good plea in bar of the action. Those matters could only avail the defendant in extenuation of the trespass and in mitigation of damages. Matters which go merely in aggravation or in extenuation, and whose effect is hut to enhance or diminish the damages, need not he pleaded. They are necessarily incidental to or intimately connected with and inseparable from the facts which constitute the cause of action or ground of defense, which they merely serve to qualify or illustrate, and in connection with which they are. always admissible in evidence as a part of the res gestee, without being specially pleaded. And if pleaded, disconnected from the principal facts which gira the right assorted and upon which they are thus dependent, exceptions to the pleading may properly he sinlaincd, since in that form it will not constitute a good'cause of action or ground of defense, and consequently will not afford the basis of an adjudication in favor of the party. Every pleading mast contain the. averment, of material, issuable facts — -facts upon which an issue may he formed — which when decided will determine the controversy and authorize a judgment for the party in. whose favor it may be found. The pleading to which the exceptions in this case were sustained contains no averment of any such fact either in bar of the. action or in abatement of the suit. The exceptions therefore were tightly susfaiued.

Note 4. — The prejudice of a juror, unknown to the party until after the trial, is good oau^e for granting a new trial. A party is not. precluded from making this objection because he did not examine the juror upon Ms coir dire as to his prejudice unless gross negligence is shown on his part-. (Ilanks v. The State, 2L T., 2(>.)

But were it otherwise the defendant had the full benefit of the matters pleaded. The facts were in evidence before the jury, who were permitted to give to them all the effect which the defendant could legally claim for them. It is manifest therefore that the defendant can have suffered no injury or prejudice in consequence of the ruling complained of. (Hardy et al. v. De Leon, 5 Tex. R., 211.) The remaining assignment of errors relates to the overruling of the motion for a new trial. The grounds of the motion deemed to require notice are, 1st, that (.lie damages assessed by the jury are excessive; 2d, objections to one of the jurors.

In respect to the first, ground it is to be observed that this was a ease in which the jury were at liberty to impose exemplary damages, and in eases of this character a new trial will not be granted on the ground of excessive damages unless they are so llagranfly excessive as to warrant the conclusion that the jury were actuated by passion, partiality, or prejudice. In these eases, whore there, is no rule of law regulating the assignment of damages and the amount does not depend on computation, the judgment of the jury and not the opinion of the court is to govern, unless the damages are so grossly excessive as to manifest that the jury must have acted under some'undue or improper influence.. (2 Pick. R., 113; 9 Johns. R., 45; 10 Id., 443; 16 Pick. R., 541; 4 Mass. R., 1; 9 Pick. R., 11; 1 Bibb R., 247; 3 Da. R., 464; 2 Penn. R., 814.) The finding in this case was doubtless governed in a great degree by the, weight which the, jury attached to the evidence introduced by the defendant in mitigation of damages. Of the weight to which the evidence was entitled the jury were the judges; and we see nothing in the ease to warrant, the. supposition that they were actuated by partiality, prejudice, or any undue influence.

In respect to the remaining ground of the motion it may suffice to remark that it nowhere appears that (.lie juror Hoskins was a member of the-grand-jury, as alleged. If, however, there, was any objection to his com potency which would have been good cause of challenge, it should have been urged when the jury were impaneled, (8 Yerg. R., 607; 2 N. & McC., 261,) or the defendant should have adduced at least the evidence of liis own affidavit to the fact that the objection to the. juror was not then known to him.

The remark attributed to the juror is not deemed to afford evidence of partiality or prejudice. And (he same is true of this as of tile other objection to the juror; it should have been made (he subject of challenge if known to the defendant, and if not known, lie should at least have submitted bis affidavit to that effect in support of the motion.

The very ingenious and eloquent argument of the counsel who opened the case for the. appellant, would have received a more particular consideration in reference to the. positions maintained in the argument if in the opinion of the court Hie questions involved were attended with any real difficulty, or if the law of the ease was not regarded as too well settled to admit of serious controversy. The judgment is affirmed.

Judgment affirmed.  