
    Willis v. Forrest.
    (Before Oakley, Ch. J., Campbell and Emmet, J.J.)
    June 18;
    July 2.
    It rests wholly in the discretion of the judge who tries a cause whether he will per mit the pleadings to be read to the jury.
    • When the issues raised upon the pleadings are irrelevant or immaterial, the judge is not bound to submit them to the determination of the jury, and may therefore withhold from the jury the pleadings in which they are contained.
    In an action of assault and battery, causes of provocation cannot be admitted in evidence in mitigation of damages, unless they happened at the time of the assault, or immediately preceding it, so as to form part of one transaction.
    In such an action, proof of the general character of the plaintiff cannot be received in mitigation of damages.
    Exceptions overruled; judgment for plaintiff affirmed, with costs.
    Appeal by defendants from a judgment at, Special Term, in favor of plaintiff, for $2,852.29. A bill of exceptions was attached to the record.
    The action was for an assault and battery, committed by the defendant on the plaintiff, in the month of June, 1850.
    The defendant, in his answer, admitted that he had inflicted several blows upon the plaintiff, at the time and place mentioned in the complaint, but denied that he had done so without •provocation. The answer then proceeded to set up as a full justification and defence, and with details unnecessary to be stated, that the plaintiff’s conduct towards him, the defendant,had been uniformly treacherous, cowardly and false; that he had availed himself of the defendant’s hospitality as a means of destroying the defendant’s tranquillity of mind, and the dignity and purity of his wife; that he had pm-sued a system of stealthy and secret intercourse with defendant’s wife; had taken with her unworthy and criminal liberties, and had introduced habits of debauchery into the defendant’s household; that the plaintiff had also caused to be published in a newspaper edited by himself, called the “Home Journal,” and also in the “New York Daily Herald,” several false and atrocious libels upon the defendant’s character and conduct, and the answer concluded with averring that it was under a burning sense of the wrongs thus done to his honor, happiness and character, that he, the defendant, had inflicted upon the plaintiff the chastisement admitted, and insisted that the plaintiff was not entitled to any damages whatever; but that judgment should be given for him, the defendant, with costs. ' The reply of the plaintiff, after averring that the allegations in the answer were entirely irrelevant, and constituted no defence to the action, proceeded to controvert the same in detail, raising thereon several distinct and plainly immaterial issues.
    Upon these pleadings the cause came on to be tried before Mr. Justice Bosworth and a jury, on the 1st March, 1852.
    The proceedings on the trial are stated in the bill of exceptions, as follows:
    
      Anne Hen'riok was sworn as a witness for the plaintiff, and testified, that she was present at the collision referred to in the pleadings, and gave evidence in relation thereto; the counsel for the plaintiff examined various other witnesses to prove the issue on his part, and other proceedings took place as follows:
    
      Lewis F. Wa/mer was sworn as a witness for the plaintiff, and testified, that he was a physician, and had been the family physician of the plaintiff for three years, that he had heard of the occurrence of an, affray between.. Mr. Forrest and Mr. Willis,—testified to by the former witnesses.
    The counsel for the plaintiff then asked the witness this question.
    What was the general state of Mr. Willis’s health at that time ?
    The counsel for the defendant objected to the testimony as irrelevant and improper.
    His honor the judge overruled the objection, and the counsel for the defendant excepted to the decision.
    
      The witness testified,—Mr. Willis was in a delicate state of health from various causes ; he was debilitated from a severe attack of rheumatic fever; he was then in a convalescent state; I can’t say how long he had suffered; it was at least a year previous; I had prescribed for him only occasionally during the year.
    After further testimony from this witness, the plaintiff rested.
    The counsel for the defence then opened the case on the part of the defendant, and offered to read the pleadings to the jury.
    His honor, the judge, refused to allow the pleadings to be read, and overruled the offer.
    The counsel for the defendant excepted to the decision.
    The counsel for the defendant, to prove the issue on his part, then called
    
      Mrs. Christina TJnd&rwood, who testified; I lived with Mrs. Forrest; I did not live with her in 1844 and 1845; but I was in the habit of going there; I called there two days before she went to Europe in 1844.
    The counsel for the defendant then asked the witness this question.
    Do you recollect Mr. Willis calling there shortly before Mrs. Forrest went to Europe %
    
    The counsel for the plaintiff asked the object of this inquiry, whereupon,
    The counsel for the defendant offered to prove by this witness and others, in mitigation of damages, criminal intercourse between the plaintiff and the defendant’s wife, commencing in 1844 and continued until May, 1850, which had come to defendant’s knowledge shortly before the collision aforesaid, and that the alleged assault and battery oc-
    curred at the first meeting of the parties after such knowledge had come to the defendant.
    His honor, the judge, overruled the offer, and excluded the testimony, and the counsel for the defendant excepted to the decision.
    The counsel for the defendant then offered to prove, in mitigation of damages, the several causes of provocation set forth in the answer of the defendant, and on which issue had been joined by the reply of the plaintiff.
    But his honor the judge overruled the offer and excluded the testimony, to which ruling and decision the counsel for the defendant duly excepted.
    The counsel for the defendant then called
    
      Henry Dougherty, who testified as to the collision mentioned in the pleadings, and then deposed as follows: Hr. Willis walked to the police office after the affair; the office was in a market in the Sixth avenue.
    The counsel for the defendant then asked the witness this question.
    , Did Hr. Willis make a complaint there?
    The question was objected to, whereupon the defendant’s counsel said, “ I offer to show that the magistrate asked Hr. Willis if he had any complaint to make, and he said he had not, and they all walked off.” This evidence was excluded as immaterial, and the question was overruled by his honor the judge, and the counsel for the defendant excepted to the decision.
    The counsel for the defendant then offered to prove, in mitigation of damages, the publications annexed to the answer in the cause, and to give the same in evidence to the jury; and to prove further, in mitigation of damages, that at the time of each of the said publications, defendant was in the State of Pennsylvania, which was his place of residence ; that he was in that State continxially, with the exception of two days, until the time of the encounter, and had never seen the plaintiff from the time of the publication until that of the collision.
    The counsel for the plaintiff objected to the testimony; the objection was allowed by his honor, the judge, and the testimony excluded.
    The counsel for the defendant excepted to the decision.
    After further testimony on the part of the defence, the counsel for the defendant called
    
      Gideon 0. Chase, who testified as follows: I reside in Owego; I have lived there since 1832; Hr. Willis, the plaintiff in this suit, resided there some four or five years; I was acquainted with him.
    The counsel for the defendant then asked the witness this question.
    Do you know his general' character for integrity and morality ?
    The counsel for the plaintiff objected to the question.
    The objection was allowed, and the testimony excluded. The counsel for the defendant exbepted to the decision.
    The counsel for the defendant further offered to show, in mitigation of damages, the general standing in society of said plaintiff, which was objected to by the counsel for the plaintiff and excluded by the court, to which decision the plaintiff excepted.
    Further testimony was then given on the part of the defendant.
    The case was then closed on both sides.
    The counsel for the defendant and plaintiff respectively summed up the cause to the jury.
    The jury retired under the charge of his honor, the judge, and on their return found a verdict for the plaintiff for $2,500 damages, and costs.
    
      J. Van Buren, for defendant,
    now insisted that the judgment upon the verdict ought to be reversed, and a new trial be granted upon the following grounds.
    I. The judge erred in refusing to allow the defendant’s counsel to read the pleadings, in opening his case to the jury.
    II. The plaintiff having joined issue upon the allegations of the answer, should have been compelled to try the issues thus framed. The court, by excluding the defence, in effect allowed the demurrer taken in the reply. This was erroneous, and in contravention of the established rule, that a party shall not both reply and demur to the same plea (Slocum v. Wheeler, 4 How. Pr. R. 373; Spellman v. Weider, 5 How. Pr. R. 5; Rickert v. Snyder, 5 Wend. 104; Wheeler v. Curtis, 11 Wend. 662; Russell v. Rogers, 15 Wend. 359).
    III. The testimony offered should have been admitted. 1. It is competent to show provocation, in mitigation of damages, in an action of assault and battery (Lee v. Woolsey, 19 J. R. 319; Ellsworth v. Thompson, 13 Wend. 663). 2. The qualifications of this rulfe that would limit the provocation to the time of the assault, are not sustained by principle or authority (Frazer v. Grantly Berkeley, 7 Car. & P. 621; Rhodes v. Bunch, 3 McCord, 66; Dean v. Horton, 2 McMullen, 147, 2 Gr. Ev. § 267). 3. Whether a sufficient interval had elapsed between the provocation and the punishment in this case, was a proper subject of inquiry for the-jury.
    IY. The testimony offered at fol. 123 and fol. 125, should have been received, [see reasons stated under point III.] There was also error in the refusal to allow the defendant’s counsel to read and prove to jury the challenge or invitation suggested in the plaintiff’s libel against the defendant (Logan v. Austin, 1 Stew. 476).
    Y. The testimony offered at fol. 124, should have been admitted. It served to show the extent of injury done to plaintiff, and to disprove his statement as to the manner in which he was assailed. And proof of Mr. Willis’ admission, that he had no complaint to make, was competent (Yost v. Ditch, 5 Black, f. 184).
    YI. This being a speculative suit, in which an enhanced rate of damages was claimed on the score of the personal position of the parties, and for injuries to the sensibilities, as well as to the body of the plaintiff, the offer to prove the standing of plaintiff in society should have been admitted. It was competent upon the question of damages (2 Gr. Ev. § 267; 2 Car. & P. 292; Paddock v. Salisbury, 2 Cow. 811).
    
      E. Sandford,
    
    in resisting the motion, argued as follows.
    I. The question put to Dr. Warner, as to the state of the plaintiff’s health, at the time of the assault, was relevant, and was properly admitted.
    II. The court properly refused to permit the counsel for the defendant to read the ' pleadings to the jury. All questions arising upon the pléadings are for the determination of the court. It was for the court to determine what issues joined in them were properly for the consideration of the jury; and what evidence was competent when offered in support of such issues (Mitchell v. Borden, 8 Wend. 570).
    III. The evidence offered to be given by the witness Underwood, was properly excluded. It did not constitute any justification for the assault, or mitigate, or excuse it (fol. 121). (Lee v. Wolsey, 19 J. R. 319; Ellsworth v. Thompson, 13 Wend. 658; Beardsley v. Maynard, 4 Wend. 336, 55; Maynard v. Beardsley, 7 Wend. 560, 64).
    TV". The offer to prove the several causes of provocation set forth in the answer of the defendant, and on which issue had been joined by the reply of the plaintiff, was properly overruled (fol. 122). [See cases cited under point III.]
    V. The question put to Mr. Dougherty, whether Mr. Willis said at the police office that he had no complaint to make, was irrelevant, and was properly excluded (fol. 124).
    VI. The offer to prove the publications annexed to the answer, and to prove the absence of the defendant from the State at the time of their publication, and that he had not seen the plaintiff from the time of publication until that of the assault, was properly overruled (fol. 125).
    VII. The question put to the witness Chase, whether he knew the general character of the plaintiff for integrity and morality, was properly overruled (fol. 126).
    VIII. The evidence offered, to show the general standing of the plaintiff in society, was properly excluded. Ho issue on this subject was raised by the pleadings; nor was the evidence offered relevant to any issue raised thereby (fol. 127).
    IX. The judgment appealed from, should be affirmed, with costs.
   By the Court. Campbell, J.

This was an action for assault and battery, tried before one of the justices of this court and a jury in the spring of 1852, and a verdict rendered in favor of the plaintiff for $2500. A motion is now made on the part of the defendant, to set aside the judgment entered on the ground that the judge had erred in refusing the defendant permission to read the pleadings to the jury, and had excluded the evidence offered in mitigation of damages.

It was purely a matter of discretion with the judge whether he would allow the pleadings to be read. He might call upon the counsel to read them, or to state their substance, if it was necessary to enable the court to understand the issues which were raised and were to be tried. The pleadings, which are presumed to be statements in legal form of those facts, which constitute the charge or defence of the parties, are for the consideration of the court. When evidence for the consideration of the jury is offered, or given, to sustain or establish those facts, it becomes necessary for the court to understand what issues are raised, and which are properly triable m the case. The facts stated in the pleadings, except so far as admitted, could not be considered by the jury until proved by competent testimony. In this case there was a long answer, admitting the assault, but setting up various causes of provocation which had arisen at different periods previous. The reply took issue and denied these causes of provocation. Thus upon the face of the pleading as they stood when the cause was brought on for trial, issues were joined in a simple action of assault and battery, the disposition of which would call for inquiries into the history, conduct, standing in society, and grievances of these parties, and extending through a series of years. It is very manifest that the judge ought not to allow those issues to be tried in such an action. The correct practice, says Justice Bafculo in a similar case (Fox v. Hunt, 8th Howard, Pr. R. 12), is at the circuit to lay out of the case all the irrelevant allegations, as well as the immaterial issues contained in the pleadings, and hold the parties to trial upon the material issues or points in the case. As most of the issues raised by the pleadings in this case could not be placed before the jury for their consideration, the judge, we think, very properly refused permission to the counsel to read the pleadings to the jury.

The evidence, which the defendant offered in mitigation of damages, and which was excluded by the judge, was not admissible. Whatever were the real or fancied causes of provocation, and which were offered to be proved, if they existed, they were known to the defendant a long time prior to the assault. They were not of recent occurrence, had not just come to the knowledge of the defendant, and especially did not happen at the time of the assault. In one of the oldest reported cases in this country, decided now nearly half a century ago (Avery v. Ray et al., 1 Mass. Rep. 11), it was ruled that in an action for assault and battery the defendant may give in evidence in mitigation of damages, immediate provocation, such as happened at the time of the assault, but not such as happened previously. Mr. Justice Ledyard said in that case that he should be in favor of admitting evidence of provocation given in mitigation of damages upon a liberal scale, but to admit such evidence where the blood has had time to cool would be extending the rule so as to render it impossible to say where the court should stop.

In the leading case in this state, that of Lee v. Woolsey, 19 John. 319, Chief Justice Spencer remarked, “It appears to me neither,to comport with sound policy nor law to allow an inquiry into antecedent facts in such a case as this, unless they are fairly to be considered as parts of one and the same transaction. A contrary course would greatly encourage breaches of the peace, personal rencounters, and every species of brutal force, and would tend to uncivilize the community.” The rule as first laid down in tMs country, so far as we find in Avery v. Bay, prevails, with scarcely an exception, if indeed there is any, in all the states of this Union, and its justness and policy have been dwelt upon, and favorably considered, in a large number of cases. It is the established rule in this state, and has been followed and recognised in several cases decided since that of Lee v. Woolsey. We see no reason in this case to depart from it. There were some other minor questions raised, but which were not pressed at the argument, and which were of little moment. We think them correctly determined at the trial.

The judgment appealed from must be affirmed.  