Ward v. Blackwood

Ward v. Blackwood, 3 S.W. 624 (Ark. 1887).

This action was brought by Massey, in his life-time, against Ward, for damages caused by an assault and battery committed upon him by Ward on the twenty-fifth of August, 1880. Massey having died since its commencement, it was revived in the name of Blackwood, as his administrator. Ward answered, and alleged that, at the time the assault and battery was committed, he was the lessee and keeper of the Arkansas penitentiary; that on the day of the trespass complained of Massey was one of the prison guards in charge of a large number of convicts, engaged at work at Argenta; that some time in the morning Massey negligently went to sleep, and suffered several of the most desperate convicts to escape; that, in the confusion produced by this escape, he went into the yard where Massey was, and struck him two or three times with a piece of thin scantling; that he was damaged to the extent of $1,500 by reason of the loss of valuable dogs, and of the labor of the escaped convicts, caused by Massey's negligence. He asked for judgment against plaintiff for the amount of his damages.

There was evidence introduced in the trial of the action tending to prove, among other things, the following state of facts: On the twenty-fifth of August, 1880, Ward was the lessee and keeper of the Arkansas penitentiary, and Massey was in his employment as a guard over a large number of convicts at work in Ward's brick-yard, opposite the city of Little Rock. Three of these convicts forcibly disarmed Massey while on guard, and made their escape. Ward was not in the brick-yard at the time, but came up soon after, and, seeing Massey standing guard with a piece of plank in his hand, accused him of letting the convicts escape, and Massey replied: "I could not help it. They slipped up behind me, back of the lumber pile." Ward, thereupon abused him, and ordered him out of the yard, and, as he turned to go, struck him violently on the back, and Massey fell; and as he got up Ward threw a piece of brick at him, and as he was going out ordered the convicts present to put him out, and they seized him, and threw him down. The injuries inflicted by Ward were serious and painful. On the other hand, there was evidence introduced tending to prove that there was no lumber, at the time of the escape of the convicts, nearer to the place where Massey at a prior time had been placed as a guard, and where Ward found him soon after the escape, than 75 yards; that Massey, several days after the escape, admitted he was asleep when the convicts disarmed him; that the period of the confinement of the three convicts who escaped extended beyond the year 1883; that Ward's lease expired in 1883; and that the labor of the three convicts was worth $675 a year.

The trial court directed the jury to respond to the following interrogatory: "Do you find from the evidence that the convicts escaped through the negligence of Massey?" The jury returned a verdict in favor of plaintiff for $1,800, and to the interrogatory answered, "No." The defendant filed a motion for a new trial, and, the plaintiff remitting $75, it was overruled, and defendant saved exceptions and appealed.

It is first insisted by appellant that he was entitled to judgment on his counter-claim to the extent of the damages proven; that the jury, in disregard of the law and evidence, refused to so find, and that, as to this issue, the verdict was totally unsupported; and that, therefore, the judgment of the court below should be reversed. If it be true the special finding of the jury was contrary to the evidence, it would be no ground for reversal, unless it was prejudicial to appellant; and it was not prejudicial if he had not the right to plead the damages claimed by him as a counter-claim. Had he this right? Appellee insists he had not.

The Code of Civil Practice of this state provides that a defendant may set forth in his answer as many grounds of defense, counter-claim, and set-off, whether legal or equitable, as he shall have. The counter-claim meant by the Code is defined to be "a cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them, arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action." The alleged tort of the defendant which constitutes the foundation of plaintiff's action is the assault and battery committed by appellant, and the foundation of the appellant's counter-claim is the escape of the three convicts through the alleged negligence of Massey. It cannot be said that the escape of the three convicts arose out of the assault and battery committed by Ward. Is it connected with the subject of the action? What is the subject of an action?

Mr. Pomeroy, in his work on Remedies and Remedial Rights, says: "It would, as it seems to me, be correct to say in all cases, legal or equitable, that the subject of the action is the plaintiff's main primary right which has been broken, and by means of whose breach a remedial right arises. Thus the right of property and possession in ejectment and replevin, the right of possession in trover or trespass, the right to the money in all cases of debt, and the like, would be the subject of the respective actions. Although in a certain sense, and in some classes of suits, the things themselves, the land or chattels, may be regarded as the subject, and are sometimes spoken of as such, yet this cannot be true in all cases; for in many actions there is no such specific thing in controversy over which a right of property exists. The primary right, however, always exists, and is always the very central element of the controversy, around which all the other elements are grouped, and to which they are subordinate."

This view of what is the subject of an action appears to have been adopted by this court in White v. Reagan.

A few cases will serve to illustrate what the subject of an action is.

Glen & Hall Manuf'g Co. v. Hall was an action to restrain the defendant from using an alleged trade-mark, "Number 10," on the ground that it was a part of the plaintiff's trade-mark. The defendant admitted that he used the words "Number 10" in his business, but alleged that it was a part of his own trade-mark, and set up that the plaintiff had fraudulently used the same for the purpose of unfairly securing the defendant's customers, and asked, by way of counter-claim, that the plaintiff might be enjoined from using the words in the course of its business to the defendant's damage. The court said: "There will, then, be two distinct cases provided under subdivision 1: (a) A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim; (b) a cause of action connected with the subject of the action. The present case falls under the last of these instances. A subject is that on which any operation, either mental or material, is performed; as, a subject for contemplation or controversy. The subject of an action is either property, as illustrated by a real action or a violated right. In the present instance the subject of the plaintiff's action was the expression `Number 10,' of which he claimed ownership as a designation of his business. The defendant's counter-claim is a cause of action against the plaintiff growing out of his infringement of the defendant's right to the same expression which he asserts belongs to himself. In the language of the Code, it is `connected' with it. The policy of the Code requires a liberal construction of this section, to the end that controversies between the same parties, on the same subject-matter, may be adjusted in a single action." See, also, Cornelius v. Kessel.

Simkins v. Columbia & G. R. Co. was an action against a railroad company for the killing of two horses by the defendant's train. The defendant denied liability, and asserted, as a counter-claim, injuries done to the engine and cars of the company by the presence of these horses on the track at the time they were killed. The court said: "The alleged tort of the defendant which constituted the foundation of plaintiff's action is the negligent running of defendant's cars, by which his horses were killed. The alleged tort of plaintiff, which is the foundation of defendant's counter-claim, was the alleged illegal presence of his horses upon the railroad track, by which the train was thrown from the track, and the engine injured. The injury to the engine, in point of time, it is true, followed in quick succession that of the injury to the horses; but it cannot be said that the illegal presence of the horses on the track, which is the foundation of defendant's counter-claim, arose out of the negligence of defendant in running the cars, which is the foundation of plaintiff's action. Nor was it connected with the subject of plaintiff's action." And the court held that the damages to the defendant's engine resulting from the trespass of plaintiff's horses on its track were not a proper subject of a counter-claim, because they did not arise out of the transaction set forth in the complaint as the foundation of plaintiff's claim, and were not connected with the subject of the action.

In California they have a statute which defines a "counter-claim" as follows: "The counter-claim mentioned in the last section shall be one existing in favor of the defendant or plaintiff, and against a plaintiff or defendant, between whom a several judgment might be had in the action, and arising out of one of the following causes of action: First, a cause of action arising out of the transaction set forth in the complaint or answer as the foundation of the plaintiff's claim or defendant's defense, or connected with the subject of the action; second, in an action arising upon contract, any other cause of action arising also upon contract, and existing at the commencement of the action." In Macdougall v. Maguire, the court held that, in an action to recover damages for an assault and battery, a libel published by the plaintiff of and concerning the defendant, which was the provocation to the offense, did not constitute a counter-claim under this statute.

Barhyte v. Hughes, was an action for an assault and battery. The defendant set up, by way of counter-claim, an assault and battery committed upon him by the plaintiff prior to the one described in the complaint. The court held that the two occurrences were so independent of each other that they could not be disposed of in one action.

The subject of this action was the right of Massey to immunity from personal violence. The breach or infringement of that right constituted appellee's cause of action. The cause of action of appellant against appellee, which was the escape of three convicts through the alleged negligence of Massey, had no connection whatever, direct or remote, with the subject of this action, and was not a proper subject of a counter-claim. But it is insisted by appellant that the special finding of the jury contrary to evidence proves that the verdict of the jury was the result of prejudice against him. The right of plaintiff to recover damages is not denied. Defendant admitted the assault and battery, and thereby necessarily conceded the plaintiff's right to recover. If the damages allowed by the jury were not excessive, he had no right to complain. Verdicts of juries are not set aside on account of the amount of recovery, unless the amount is excessive. If the plaintiff was entitled to recover, and the amount of the verdict was a fair compensation for the injuries complained of, the verdict of the jury should be permitted to stand. Upon a careful consideration of all the evidence in the case, we do not think the damages recovered were excessive.

It is next urged by appellant that the court below erred in instructing the jury, at the instance of plaintiff, as follows: "The court instructs the jury that the defendant, Ward, is liable in this action, not only for any wrongful assault which he himself may have made upon the plaintiff's intestate, Massey, but also for any wrongful assault which he may have caused to be made upon him by convicts acting under his orders on the occasion named in the complaint. If the jury find this to be true, and if the jury find for the plaintiff, it will be their duty to find for the plaintiff in such amount as would be a fair compensation to the plaintiff's intestate, Massey, for the injuries he suffered from any such wrongful assault; and in estimating such amount the jury may take into consideration the pecuniary outlay for medical and surgical attendance, loss of time and labor, and diminished capacity to work thereby occasioned from the date of such assault to said Massey's death, and also the personal indignity involved in such assault, and the bodily pain and suffering said Massey may have endured therefrom; and, in estimating the damages for such personal indignity and bodily pain and suffering, it will be the duty of the jury to say, within the bounds of reason and justice, what amount they believe to be a fair compensation for the injury sustained." It is insisted that this instruction was erroneous, because it furnished an improper measure of damages. But this question was settled by this court in this action when it was here before. Upon this point it said: "The elements of damages are the personal indignity involved in the assault, the plaintiff's bodily pain and suffering, loss of time and labor, and diminished capacity to work from the date of the assault to Massey's death, and the expenses of medical and surgical attendance during his injuries consequent upon the injuries received." See Ward v. Blackwood.

It is next contended that this instruction was erroneous because it permitted the jury to allow such damages as they, within the bounds of reason and justice, believed to be a fair compensation for the injury sustained, without regard to the evidence. But this and all other instructions given to the jury are to be considered together, and as a whole. In this connection the court instructed the jury among other things, that the burden of proof was upon the plaintiff to show, by evidence fairly preponderating, that Massey was unlawfully assaulted by Ward, and also to what extent Massey was actually damaged; and that, if they found Ward unlawfully assaulted and beat Massey, then Ward was liable for actual damages; and that, in arriving at the amount they should assess, they should take into consideration all the circumstances surrounding both parties. In construing these instructions together we see no conclusion to which the jury could fairly and reasonably have come, except that in considering their verdict, and the amount thereof, they should be governed by the evidence. Moreover, one of the elements of damages in the case was the pain and suffering caused by the wrong complained of, for which there is no legal measure of damage. The amount allowed therefor, if any, must to some extent have been left to the fair discretion and judgment of the jury.

One of the grounds of appellant's motion for a new trial was misconduct of the jury in arriving at their verdict by lot. In support of this ground the following affidavit was filed: "On this day comes J. D. Murphy, I. B. Durrall, and J. M. Simpson, who state, on oath, that they were members of the jury who tried and returned the verdict in the above-entitled cause; that the jury differed as to the amount of the said verdict, and finally concluded to write the amount of $2,000 on one slip of paper, and the sum of $1,800 on another slip of paper, and the two were then placed in a hat, and one of the jurors was requested to draw one of said pieces of paper out of the hat, which was done, and the slip of paper with the $1,800 written upon it was drawn, and the verdict was made and rendered at such amount, and so returned it." And the plaintiff objected to the admission of it as evidence for any purpose whatever. Was it admissible? In Pleasants v. Heard, the affidavit of Strawn, one of the jurors, was filed to show that the jury agreed that each member thereof should write down the amount that he was in favor of, and that these several amounts should be added up, and their sum divided by 12, the number of the jurors, and that the quotient should be taken and written as the amount of their verdict, which was accordingly done, and the verdict so arrived at was returned into court as the verdict of the jury. Chief Justice ENGLISH, in delivering the opinion of the court, said: "Though there are some conflicting cases, we think it may be safely decided, upon authority, and for many good reasons, that the affidavit of the juror Strawn was not admissible in this case to impeach the verdict rendered by him, for the cause stated in the affidavit." The rule laid down in Pleasants v. Heard has not been changed or repealed in civil cases, but, on the contrary, in such cases, remains in full force.

We find no error in the judgment of the court below prejudicial to appellant, and it is affirmed.

Elliot v. Porter is another case from the same year involving the tort of battery.

Elliot v. Porter

Elliot v. Porter, 35 Ky. 299 (Ky. App. 1837).

PORTER having obtained a verdict and judgment against Elliot, for six hundred dollars, for the conversion of one hundred and twenty-five barrels of salt — the latter now seeks a reversal on two grounds:

First. He insists that the Circuit Court erred, to his prejudice, in refusing to permit him to read a certified copy of the record of an action of detinue, in which Porter had previously obtained an alternative judgment against one Jacob Luce, for the same salt, or for its assessed value, of which judgment there had been no satisfaction.

The judgment in detinue merged all right of action, by the same plaintiff, against the same defendant, for the same cause of action; because the judgment was of higher dignity than the previous right to sue for the salt or for its value. In such a case, and in such sense only, the maxim, transit in rem judicatum, applies.

But the judgment did not extinguish any cause of action which the same plaintiff may have had for either a trespass upon, or a detention, or conversion of the same property by another person, either at a different time, or in conjunction with the party first sued.

A cause of action ex contractu against several persons may not be extinguished by a judgment against one of them; nothing short of a release or actual satisfaction will have that effect when they were severally responsible. This is too well settled and understood to require support by argument or a citation of adjudged cases. The reason is even stronger in many cases ex delicto.

It is true that there is some diversity in the books respecting the legal effect of a judgment against one joint trespasser, on a subsequent suit by the same plaintiff against another joint trespasser, for the same wrong. Mr. Chitty has suggested that the judgment might bar the second suit. And the Court of Appeals of Virginia, without much apparent consideration, seems to have concurred in that view of the law, in the case of Wilkes vs. Jackson.

And why should this not be the true doctrine? Is it doubted that, in trespass, a plaintiff may have several damages, and elect de melioribus damnis? And may he not, pari ratione, have several judgments in different actions, and make the same election? As the plaintiff may undoubtedly sue any one of several joint trespassers, why should a judgment against one, (in an action of detinue, or assault and battery, for example,) extinguish his cause of action against another, when it is not doubted that in cases of contract, a judgment against one is no bar to a suit on the same contract against another jointly and severally bound?

Brown vs. Wotton seems to be referred to as the leading and first case in favor of the doctrine we are combating; and, in that case, the point, in support of which it has been referred to in some other cases, and by Mr. Chitty, was not necessarily determined, because, there had been not only a judgment, but also execution, against one of several who were jointly guilty; and besides, so far as the opinion, as rendered, should be deemed judicial, it is entitled to no influence, because the reason assigned for it was only that the demand rested in damages, and the judgment had reduced them to certainty, and therefore another suit could not be maintained for that which was uncertain. That reason is not only inconclusive, but evidently suicidal; for, in many actions ex contractu, the plaintiff has a right only to unascertained damages; and yet, it is not doubted that a judgment against one for damages arising from a breach of contract, is no bar to a separate suit on the same contract, and for the same breach, against another party who was liable jointly and severally with the first defendant.

It is a general rule, that wherever there are several concurrent remedies for the same cause of action, in favor of the same person, against several different persons, judgment against one will not bar a suit against another. There must be satisfaction.

Whether an unsatisfied judgment, (for the value of the thing taken or converted,) obtained by the owner, in an action of trespass or trover, will per se bar a new suit against a different defendant for the same or a different asportation or conversion of the same property, is a question — so far as the value of the property is concerned — which would be affected by the proper answer to another; and that is, whether the mere judgment for damages, in such an action, would have the legal effect of transferring the title to the property for which the damages were adjudged. And this latter question is not, we confess, conclusively settled by authority.

A few old cases might be understood as assuming the true doctrine to be, that the title passes by operation of law, in consequence of the judgment for damages. Some more modern decisions, contra, require satisfaction of the judgment, and others the issuing of an execution upon it, as necessary for making the initiate election, to take the assessed value in lieu of the property itself, perfect and irrevocable. The maxim of the civil code was "Solutio pretii emptionis loco habetur" — the payment of the price stands in the place of a purchase, or has the effect of a purchase. And in Drake vs. Mitchell, supra, Lord Ellenborough said that, though a judgment will merge the particular cause of action for which it was obtained, it is only a security, and will not bar any collateral remedy, or operate as a legal transfer of title until there shall have been actual satisfaction. And this seems to have been the opinion of one of the most illustrious of American jurists, Chancellor Kent.

But, as the decision of this point is not necessary in this case, we will not discuss it, or express a definitive opinion respecting it; for whatever may be the legal effect of a judgment in trover, a judgment in detinue, standing on ground altogether different, cannot bar a new suit either in detinue or trover for the same cause of action, against a different defendant, on any such ground as a legal transference of the title by the judgment which entitles the plaintiff to restitution of the property.

We can perceive no reason, and know of no authority, for deciding that, where several persons have been guilty, either jointly or severally, of detaining, the same thing from the same owner, a judgment in detinue against one of them, without satisfaction, should bar a suit against another of them, either for the detention or the conversion of the same thing. If, as we presume should not now be controverted, a judgment against one of several persons who were severally and jointly liable by contract, or for assault and battery, would not extinguish the same plaintiff's legal cause of action against any one of the others whom he might, in the first instance, have sued, there can be no consistent reason for making a judgment in detinue a bar to another action of detinue or trover against another defendant for the same cause of action; or rather, for the detention or the conversion of the same property from the same owner. Why, in such a case, should a mere judgment against one, exonerate another? He cannot plead that the plaintiff has been satisfied; nor that his cause of action, once perfect against himself, had been extinguished by a judgment, without satisfaction, against another person. Nor could he, like the defendant in the judgment, object that the second suit was vexatious, as it was the first and only one against himself.

When a cause of action is joint only, a judgment against one may bar an action against another who was jointly liable with him; but the only efficient reason that could be assigned for such a doctrine, is that the one sued last might, if sued alone, plead the nonjoinder of the other, and the latter, if associated with him in the action, might plead the separate judgment rendered against him for the same cause of action, even though it was irregular, and might have been prevented by pleading the nonjoinder. But a liability for a tort being several as well as joint, a mere unsatisfied judgment against one of several, for detention of property, should not operate as a bar to a suit against another guilty of the same or a different detention of the same thing. The whole original cause of action, even when joint, is never extinguished, in such a case, until there has been satisfaction or release.

But there can be but one satisfaction for the same wrong. When several judgments have been obtained on the same cause of action, the plaintiff must elect which he will enforce; and when he shall have once elected, perhaps he may be enjoined from proceeding on another. Certainly one satisfaction would be sufficient to enjoin him. In such a case, the audita querela was the appropriate and usual common law remedy. And a motion, and perhaps a bill in chancery, might affect the same purpose now, and in this country, as well in cases ex delicto, as in those ex contractu.

According to the foregoing conclusion, the unsatisfied judgment against Luce, is no legal bar to this suit; and the more especially, as it neither appears, nor was even suggested, that the conversion here complained of, and the detention for which the judgment was rendered, were the same act of Luce and the present party; for if, as may be the case, the detention by the one, and the conversion by the other, were several and independent wrongs, there cannot be even as much reason for making the judgment for one injury a bar to a suit for the other, as there might be for barring an action ex contractu against one person, by a judgment against another severally liable on the same contract.

Second. The plaintiff in error insists that the Circuit Court erred, in deciding that a witness who gave testimony against him was not incompetent, on the ground of interest disclosed by himself.

It does not appear that the witness had any legal interest in the event of the suit. On his voir dire, he stated that he felt some interest in behalf of the plaintiff, because he had sold to him (the plaintiff) the salt for which this suit is prosecuted, and intended not to exact the whole price if the plaintiff should fail to obtain a judgment, though he had made no agreement to that effect, and was under no obligation to remit any portion of the stipulated price.

These facts — and there are no others — show that the witness was not incompetent in consequence of any legal interest. But, if he felt that he had a legal interest in the event of the suit, he was not competent, even though he was mistaken in his opinion as to what was a legal and disqualifying interest. When there is a legal and certain interest, however minute, in the event of a pending suit, the law, upon grounds of policy, presumes that it will incline the witness, thus interested, to swear as he would in his own case. And certainly if he feels, though erroneously, that he has such an interest, the reason of the interdiction applies with full force. But mere solicitude for the success of one of the parties, arising only from friendship, or from an honorary obligation, or voluntary intention to divide with him the burthen of a failure in his suit, or from an expectation of participating in the advantage of his success, will not affect the competency of a witness.

If, then, the witness in this case felt that his interest was legal, or, in other words, that he was under a legal obligation to remit any thing to the plaintiff in the event of his failing in this suit, he was incompetent: otherwise his feelings should have affected his credibility only.

Now, although he said that he felt some interest, nevertheless the grounds of that feeling, as explained by himself, show that his interest was not of the disqualifying kind; and therefore, nothing appearing to the contrary, we should presume that he did not feel or intend to be understood as suggesting that he had any legal interest in the event of the suit. And consequently, as, in a doubtful case, an objection to a witness should be applied to his credit, rather than his competency, it is the opinion of this Court, that the Circuit Judge did not err in admitting, as competent, the testimony which was objected to as incompetent on the ground of supposed legal interest.

It seems to us, therefore, that neither of the objections which have been urged against the judgment can be sustained.

Wherefore, it is considered that the judgment of the Circuit Court be affirmed.