
    Stephen Whatley, v. W. Murrell.
    Spec:?,l damages must be predicated upon the direct consequence of the illegal act, and flawing from it, and not npon any unfortunate occurrence, or circumstance merely attending such act, but requiring additional agencies. Vide Greenleaf} 256; Svvth, 132, and his collection of cases on this subject.
    Where damages have been recovered in an action of trespass, the fact of a third person having commenced the affray with defendant, which resulted in the injury to plaintiff, will not give to defendant a legal right to recover this amount, as so much to be reimbursed to him, as ¡special damages, in his pending action against such third person.
    Where there has been a judicial error in the charge, which might influence the verdict, this oúves a right to a new trial.
    Tried before Mr. Justice Richardson, at Edgefield, Spring Term, 1847.
    The following is the report of the presiding Judge.
    The defendant was sued in trespass for an assault and battery upon the plaintiff. The grounds taken require a full narration of the circumstances attending the alleged assault, i nd I transcribe the evidence from my notes.
    
      James Miller, April 25, 1845, saw Gomilion strike defendant times. J. Day shoved Gomilion back. Witness then saw a pistol drawn by defendant out of his pocket; he had his thumb upon the cock; thinks it was cocked; witness caught the pistol and lowered it to go into the ground, but it fired, and the plaintiff was shot, as witness found afterwards. The crowd gathered, and witness could not get to him for three or four minutes.
    
      Cross-examined. Gomilion was striking defendant with a stick before defendant drew the pistol. It was quickly over. Gomilion returned to defendant, being before pushed away, and kicked him after the fire. But in same affray, witness bad not before seen Whatley. Thinks Murrell had let go the pistol with his left hand when the pistol fired; it jarred his hand.
    
      L. Gomilion. He had the affray near Ryan’s Hotel, &c. Witness struck defendant. Defendant had asked witness to drink; he refused indignantly to drink with so mean a man, and said so, &c. But he, defendant, cleared the law, &c., when witness gave him two blows oil his head, and one on side. Defendant was drawing a pistol when Day shoved witness. Witness turned to Day, but Day let him go and the pistol fired. Witness drew defendant down and gave him kicks, supposing he had another pistol. Defendant and witness had not been on speaking terms for some time. Witness had been put on his guard, &c., that day, by ■-■. Defendant was drunk. Believes defendant meant to shoot witness.
    
      J. Day. Saw defendant draw the pistol. Whatley was a few steps off in front on the right, when witness was holding Gomilion. Plaintiff fell instantly at the fire. Witness jirked Gomilion off Murrell, and they went away.
    
      Dr. E. Mims. Saw plaintiff about candle-light, his thigh was fractured about the middle; he suffered great pain; thought him in danger; moved home in five or six weeks. He used it some weeks after. Witness’ bill was fifty-three dollars. Defendant’s face was severely tumefied; skull cut.
    
      Dr. Williams. His bill was forty-four dollars, but not yet paid; regarded him in danger at one time.
    
      Cross-examined. Defendant was also severely hurt.
    
      B. Miller. Just before witness told Gomilion he heard defendant curse him, and witness expected they would have an affray. Did not advise Gomilion to attack defendant, but Go-milion took witness’ stick, then defendant came up to Gomilion and asked him to drink; Gomilion cursed him, and said he would whip him, but for the law. Defendant cleared the law, and Gomilion struck defendant.
    
      J. Ryan. Whatley staid six weeks. Bill fifty dollars. He lost his year’s work.
    Defence. D. Lisick. Came out and saw a stick up, but they were parted. Gomilion said he is drawing a pistol, and defendant drew it. Miller caught it, and it fired. Defendant was in the act oí cocking it when Miller caught it. Whatley stood to right of defendant, forward, and nearer than Gomilion to Murrell. Murrell is peaceable.
    
      E. Eidson. Gomilion said, “you damn rascal,” and struck defendant; at third lick defendant raised his left arm; Murrell staggered; Day took the stick which was broken. Gomilion said, “he is drawing a pistol, let me kill him.” Did not see Murrell’s right hand, and supposed it was hanging down. Did not see Whatley. Saw Murrell a week after in a bad fix; told witness he was trying to take hold of the pistol when it fired.
    & Brooks. Heard a blow; saw Gomilion in contact with some one; heard said, “he is drawing a pistol,” and it fired. Murrell was much hurt; nose broken down. Gomilion has had some affrays, (two,) one with Glover.
    
      J. Swincinggill. Saw Gomilion strike Murrell. Murrell had asked Gomilion to drink. Gomilion replied, “with no such damn rascal,” and but for the law would whip him. Said something of an old scrape. Murrell stepped back and said all laws were clear, and Gomilion struck. As Murrell stepped back he put his hand to his breast. Witness gave back into the crowd, yet saw Gomilion strike three blows, but saw no more.
    Witness had been a few minutes before with Murrell; he appeared civil, but slightly intoxicated.
    
      Cross-examined. Murrell put his hand to his breast as he stepped back. Witness’ apprehension was excited, that Murrell would use some weapon (to defend himself.) Never saw either in a fuss before.
    
      J. Haring. Witness stood three paces from Murrell. Saw Gomilion beating him. After the third blow, he, Murrell, stepped back, and drew a pistol, holding it with his left, and trying to cock it with his right hand. Gomilion had one scrape before—defendant badly hurt. Does not know why Murrell had not put up his arm before the third blow. Miller seized the pistol, which turned it to the right, and down.
    
      Theodore Kennerhj. Saw defendant at the end of the week; his eyes closed—not breathing through his nose.
    
      Deloach. Saw Gomilion hit Murrell three licks. The crowd rushed in and he could not see; heard the shot. Murrell is quiet when sober, but when drinking is quarrelsome. Gomilion has had affrays.
    Ti 'illiatn Carter. Wrhatley told him he did not think Murrell shot him on purpose. Gomilion not disrespectfully spoken of.
    & R. Randal. Saw Murrell a few minutes before; they were starting home. But Murrell said he would not go; would go back, and cursed Gomilion a damned rascal. Witness told him Gomilion was a. big young man, (fee., and advised him to come along. Murrell then pulled out a bar of lead, and said» “here is this, if this wont do, there is something else”—and went back and met Gomilion, and asked him to drink, cleared the law, <fec., (fee., <fec. Witness was apprehensive of a fuss, when he saw Gomilion, supposing there had been a quarrel.
    
      H. Gallman. Saw defendant 2 or 3 o’clock. Defendant pulled out a bar of lead, and said he asked his brother what he could do with it; and he replied, it would kill a man. Murrell spoke of Merrel killing a man with such a weapon, and said, “rnay-be I may be his brother.” Gomilion is peaceable. Mur-rell troublesome when drinking, and had been there drinking that day.
    
      W. Cloud. Gomilion and Murrell had fallen out some years before. At the Piney house last year, Murrell asked witness if he did not think he could whip Gomilion a fair fight. Witness said he thought not. Murrell then said he would bet witness two negroes to one he could whip Gomilion. Murrell is very clever when sober, but very quarrelsome when drunk. Gomil-ion is peaceable. Witness felt insulted by what Murrell said of his friend, Gomilion. Witness had no other falling out with Murrell.
    
      Holsonback. Witness asked Gomilion to go to Ryan’s to take a glass; witness, Day, Coleman and Gomilion. went. After drinking, witness went back to pay the bill, and returned and found Gomilion and Murrell in the quarrel. Before they had come out, young Miller whispered to Gomilion, and Gomilion took a stick out of his (Miller’s) hand. Defendant was pretty groggy—was much hurt. Murrell said to witness, “hunt Go-milion, and we will have it out now. Murrell was drinking.”
    
      
      William Kemp. Gomilion and Murrell had a fuss some five years ago; and Murrell has said he had to kill Gomilion, or Gomilion him. Witness had said it was a trifling affair, to make it up. Defendant said he would never make it up; if he ever commenced again, he would kill him, for Gomilion had come into his field and insulted him.
    On the part of defendant, it was contended, that the only agency he had in inflicting the injury complained of, consisted in his drawing a pistol and attempting to cock it, with the view of defending himself against Gomilion, and was justifiable in doing so. That the firing of the pistol was not the act of defendant, but was caused by the witness, James Miller, in seizing the pistol, and endeavoring to turn its muzzle towards the ground; and that the consequences to the plaintifl which resulted, were clearly not the intention of the defendant, and could not justly be laid to his charge.
    I instructed the jury, that if Murrell invited Gomilion to drink with him in a friendly spirit, and not for the purpose of seeking a quarrel, and was free from all blame in respect to the affray between them—then, the defendant was justified in drawing his pistol to defend bimself, and the present action could not be maintained against him; but if, on the other hand, Murrell addressed himself to Gomilion in order to provoke a quarrel, and was not free from blame in the matter, then, that Murrell was answerable in this action, for all the consequences which had resulted to the injury of the plaintiff. I also said to the jury, that if Gomilion was not justified in his assault and battery upon defendant, Murrell, the amount of damages they might give by their verdict in this action, coulu be recovered by Mur-rell as special damages in his action against Gomilion.
    The jury found for the plaintiff, $650 damages.
    The defendant moved the Court of Appeals for a non-suit, upon the ground,
    That the injury done to the person of the plaintiff was not inflicted either by the immediate act of the defendant, or with his consent; and if the defendant be liable in any form of action, that it is in case, and not in trespass.
    
      Failing in his motion for a non-suit, the defendant will move for a new trial, upon the grounds,
    1. That the Judge presiding at the trial erred in charging the jury, that, if Gomilion was not justifiable for his assault and battery upon the defendant, the amount of damages they might find for the plaintiff could be recovered by the defendant in his pending action against Gomilion, as special damages resulting from his assault and battery upon the person of the defendant.
    2. That the defendant was, under the circumstances, justifiable in drawing his pistol to deter Gomilion from renewing his attack upon him, or to defend himself if it should be actually made.
    3. That the amount of damages found by the verdict was unreasonable and excessive.
    Griffin, for the motion.
    The injury was consequential. Murrell was justifiable in drawing his weapon, but never intended to shoot Whatley, therefore the action should have been case; Chitty’s PL, 328, 346, and 347; Greenleaf Ev., 254.
    Wardlaw, contra.
    
    How can Murrell be free from blame? He came armed, and asked his antagonist to drink, to provoke him. If it was a fight by agreement, still he is only dividing the blame; he is not blameless; Borodale v. Brook, 8 Taunt., 535; Dickerson v. Boyle, Pick., 78. Gomilion will be liable to Murrell to restore the amount of damage. He provoked the affair; Dean v. Hartley, 2 M’Mul.
    Carroll, for the motion.
    It was Miller’s, and not Murrel’s act, by which the pistol fired; the action therefore cannot be maintained against Murrell; certainly not the action of trespass. The result was not an immediate consequence of his act. The verdict is not sustained by the proof; 2 Reeves’ Ev., see. 56. The damage must be the legal consequence of the act; Wilcox v. Withers, 8 East., 1. Where the act results from the intervention of a third person, who is a free agent, special damages cannot be recovered; Smith’s Lead. Cases, 132, (Ashley v.--) Ward v. Wicks, 7 Bing., 211. The third person must be a free agent. The only way Whatley can recover against Murrell, is, because he committed an illegal act.
   Richardson J.

delivered the opinion of the Court.

The objection to the charge of the Judge, necessary to be considered, is as follows: That the Judge presiding at the trial, erred in charging the jury, that if Gomilion was not justifiable for his assault and battery upon the defendant, the amount of damages they might find for the plaintiff could be recovered by the defendant in his pending action against Gomilion, as special damages resulting from his assault and battery upon the person of the defendant.

It would be, perhaps, not incorrect, to say that the damages recovered against the defendant might go to aggravate or enhance his recovery against Gomilion, if he, Gomilion, had provoked the affray which resulted in the injury to Stephen Whatley, and gave rise to his recovery against the present defendant, Murrell. But this would be merely as one of the circumstantial facts, consequent to the allegation, if true, that Gomilion originated the affray between himself and Murrell.

But the charge of the Judge extends this idea, or argument, and lays it down as giving a legal right in Murrell to recover the amount that might be given to Stephen Whatley, as so much to be reimbursed to Murrell, in his action against Gomilion, as special damages. This converts an argmuent for Murrell, and perhaps a strong one, into a legal right of recovering so much. Special damages must be predicated upon the direct consequence oi the illegal act done, and flowing from it, (2 Greenleaf, 256; Smith 132, and his collection of cases on this subject,) and not upon any unfortunate occurrence or circumstance, merely attending such act, but requiring additional agencies; for instance, A. sells B. a horse warranted sound, that turns out to be infected with a contagious disease that injures other horses. But supposing no mala fules, B. could not recover for such consequences; yet it would be a strong argument for recovering the money he actually paid, with interest. But it would be argument, not law. There was, therefore, a judicial error in the charge, which might influence the verdict. This gives a right to a new trial, which is therefore ordered.  