
    George Miller v. David Sweitzer.
    
      Joint trespassers: Evidence. In an action for an assault and battery, evidence of violence or the consequences of violence committed by another, not a party to the suit, is admissible when there are circumstances tending to show that such other person was co-operating with the defendant. Whether such co-operation exists, is a question of fact for the jury; and if found by them to exist, it may properly be considered in mating up their verdict.
    
      Mobility of the husband for torts of the wife. Where a husband and wife are shown to have been engaged in an assault and battery, for which the husband alone is sued, if he wish to rebut the presumption that the. wife was acting under his control, he may have the question submitted to the jury as a part of • his defense.
    
      Heard January 12.
    
    
      Decided April 5.
    
    Error to Wayne Circuit.
    This was an action of • trespass on the case brought by David Sweitzer, in the Circuit Court for the County of Wayne, against George Miller, for an assault and battery committed by Miller upon Sweitzer. The defendant pleaded not guilty. On the trial evidence was offered by the plaintiff to show the participation by the defendant’s wife in the acts of violence for which the suit was brought, and of the consequences of such acts. This evidence was objected to, but admitted by the court. The jury found a verdict for the plaintiff, and the judgment entered thereon the defendant below brings into this court by writ of error.
    
      H. M. & W. E. Clmver, for plaintiff in error.
    
      Wilkinson & Post and J. Logan Chipman, for defendant in error.
   Graves, J.

This was an action on the case by Sweitzer against Miller, to recover damages alleged to have been occasioned by an assault and battery by the latter upon the former The declaration alleged the infliction of personal injuries’ and stated that they prevented the plaintiff from attending to his business, and compelled him to spend considerable sums to regain his health.

The case being tried upon the general issue, the plaintiff submitted evidence conducing to show that he called at the grocery of defendant on business, when an altercation occurred between Sweitzer and Miller’s wife respecting the-payment for some beer which she claimed he had purchased on a former occasion and had neglected to pay for. Sweitzer, being upon the stand, testified, among other things, that on his refusal to pay for the beer, Mrs. Miller took his hat and threatened to take his watch; that he sought to regain his hat, when she caught him - by the neck, threw him •down, and then called to her husband, the defendant, to come and kill him if he did not give up his watch or pay for the beer; that defendant then seized him by the throat and struck him several blows about the head; that Mrs. Miller then struck him on the head with a hatchet. The last statement was admitted under an objection by defendant’s counsel, that any evidence as to blows struck by Mrs. Miller was incompetent and irrelevant.

Doctor Spranger having been likewise called as a witness for the plaintiff, and having testified that he had been a practicing physician for several years and attended upon the plaintiff on account of his injury, and that he found several cuts upon his face and head, and bruises upon his back and about the spine, was asked whether he could, or did, form any opinion as to how the wounds on the head were made ? This question was objected to by the defendant’s counsel, on the ground that there was no evidence that defendant struck the blows on the’ plaintiff’s head; while the proof showed that if any one struck them it was Mrs. Miller, who was not a party, and also on the general grounds that the evidence called for was immaterial and incompetent. The objection was overruled, and the witness stated that the blows must have been made with a blunt instrument and something harder than the fist The only questions in the case arise on the refusals of the court to sustain these objections; and as they are admitted to stand on the same foundation, they will be disposed of together. The plaintiff in error takes the ground, that as he was prosecuted alone for his individual wrong, and as it did not appear that there was any concert between himself and his wife, or that his act naturally and ordinarily produced the blows given by his wife, the evidence respecting her assaults was inadmissible. This position assumes a condition of things which the record does not sanction, namely, that when the evidence was admitted, no oircumstances were before the jury having any tendency to show that Miller and his wife did act in concert. It appears, however, that testimony had then been given that the broil was commenced by Mrs. Miller, and that after having assaulted Sweitzer by seizing his hat and throwing him down, she called the defendant to engage, and on his compliance, proceeded to follow up by striking with the hatchet. According to this, the defendant and his wife were carrying on their assaults at the same time and on the same side of the controversy; and it cannot be doubted but that the whole circumstances, as stated in the record, had a tendency to show that they were co-operating, and, indeed, acting as co-trespassers. Whether, as between themselves, they were both principals in culpability, or whether the man or the woman was principal and the other an aider and abettor, is of no consequence in this inquiry.

The relation to an act of trespass, which makes a party liable, as also the force of certain facts as evidence of such relations, is' very clearly stated in Brown v. Perkins and wife, 1st Allen, 89. The court there say: — “Any person who is present at the commission of a, trespass, encouraging or exciting the same by words, gestures, looks or signs, or who in any -way or by any means countenances or approves the same, is in law deemed to be an aider and abettor, and liable as principal; and proof that a person is present at the commission of a trespass, without disapproving or opposing it, is evidence from which, in connection with other circumstances, it is competent for the jury to infer that he assented thereto, lent-.to it his countenance and approval, and was thereby aiding and abetting the same. On the other hand, it is to be borne in mind that mere presence at the commission of a trespass or other wrongful act does not render a person liable as a participator therein. If he is only a spectator, innocent of any unlawful intent, and’ does no act to countenance or approve those who are actors, he .is not to be held liable on the ground that he happened to be a looker-on and did not use active endeavors do prevent the commission of the unlawful act.”

Without resting at all upon the common-law presumption that the blow by Mrs. Miller, in her husband’s presence, was by his procurement (Reeves Dom. Rel., 3d ed. 148, 149, 2 Kent’s Com., 149), we think the evidence was properly admitted as -tending to show what was done by the assailants, respectively and to enable the jury to measure the damages according as they should find, whether or not Miller and his wife were in fact so connected, in the assault with the hatchet, as to make him liable therefor. If the plaintiff in error had any desire to contest the question as to whether he was so related to that act as to make him liable, he had opportunity .to do so by requesting the court, if the same was not done voluntarily, to submit it under proper instructions to the jury, who were the exclusive triers of the fact. The charge is not before us, and since it is not complained of, we must conclude that the jury were properly advised on the subject.

The judgment should be affirmed, with costs.

The other Justices concurred.  