Art. 9. Damages.

It has been held that if an assault has not been found to be malicious by the jury, exemplary damage should not be allowed. Williams v. Garrett, 12 How. Pr. 456.

Where the evidence showed an aggravated assault, the court will not interfere with a verdict which gives punitive damages. So also in a case where the most serious part of the assault was committed by the defendant's servant at his order. Smith v. Flannery, 53 St. Rep. 159, 23 N. Y. Supp. 201.

The amount of damages is a question for the jury on all the evidence, and a verdict of $100 for the plaintiff, who only received a black eye, will not be disturbed by the court. Dunlap v. Ross, 43 St. Rep. 509, 18 N. Y. Supp. 48.

A verdict against a railroad company for $5,000 for an assault upon the plaintiff by a servant of the defendant, who attempted to kick the plaintiff, resulting in a swelling of the groin, whereby the plaintiff was obliged to go to a hospital, was held not to be excessive. Niendorff v. Manhattan R. R. Co., 4 App. Div. 46, 38 N. Y. Supp. 690.

A verdict of $5,000 was held to be excessive, even as punitive damages, in a case where the plaintiff provoked the assault by taunting and irritating the defendant when the latter was intoxicated and excited by drink. Roades v. Larson, 50 St. Rep. 551, 21 N. Y. Supp. 855, 66 Hun, 635.

For a case where the verdict was set aside as excessive, see Roades v. Larson, 50 St. Rep. 551, 66 Hun, 635, 21 N. Y. Supp. 855.

SUBDIVISION 3.

Mitigation of Damages.

In Genung v. Baldwin, 77 App. Div. 584, 79 N. Y. Supp. 569, 113 St. Rep. 569, reversing 75 App. Div. 195, it was held that provocation for the assault may be considered by the jury for the mitigation not only of punitive damages, but also of compensatory damages. The decision is founded on Kiff v. Youmans, 86 N. Y. 324, where it was said by Danforth, J.: "It still remains that the plaintiff provoked the trespass; was himself guilty of the act which led to the disturbance of the public peace. Although this provocation fails to justify the defendant it may be relied upon by him in mitigation, even of compensatory damages. This doctrine is as old as the action of trespass." But compare Voltz v. Blackmar, 64 N. Y. 444; Linde v. Elias, 4 Alb. L. J. 76.

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Art. 9. Damages.

Facts constituting provocation or excuse for the assault may be shown in mitigation of exemplary damages. Saltus v. Kip, 12 How. Pr. 342.

The belief of the defendant as to his danger at the time of the assault may be shown in mitigation of exemplary damages, unless the plaintiff claims only compensatory damages. Hogan v. Ryan, 5 St. Rep. 110, citing Yates v. N. Y. C. & H. R. R. R. Co., 67 N. Y. 100; Whart. Crim. Ev., § 459.

In this case the court said "upon the question of exemplary damages he (the defendant) was entitled to have his conduct construed in the light of the danger in which he was apparently placed, and especially so when the plaintiff's conduct apparently increased his danger."

The damages sustained by the plaintiff cannot be mitigated by evidence that she was dissolute in her character. Such a woman is entitled to the same measure of damages for the trespass as she would have been if she sustained a good character for virtue. Corning v. Corning, 6 N. Y. 104.

But, in an action for assault and battery, which is aggravated by indecent assault, the plaintiff's character for chastity is directly in issue upon the question of damages, because her mental suffering will be greater in the event of her being chaste than otherwise, and specific acts of lewdness and immorality may be shown to attack her character. Ford v. Jones, 62 Barb. 484.

Mere physical possession of premises by a person is not sufficient to justify him in using force and violence either to prevent the lawful entry of the occupant, or one who has entered, and eject him therefrom. Liebstadter v. Federgreen, 80 Hun, 246, 61 St. Rep. 621, 29 N. Y. Supp. 1039.

A series of continued and repeated insults on the part of the plaintiff may be shown as provocation, and in mitigation of damages. The question is not how many hours elapsed since the provocation has been given, but whether in view of the circumstances of the case the party has had reasonable time to cool his blood. So that if the plaintiff, by series of irritating and annoying provocations, keeps the defendant in an excited state of mind, such fact may be shown. Each case should be controlled by its own peculiar circumstances. Dolan v. Fagan, 63 Barb. 73.

But the provocation which is admissible in mitigation of damages must be so recent and immediate as to induce a presumption

Art. 9. Damages.

that the violence was done under the immediate influence of the feelings and passions excited by it. Acts of the plaintiff done at a different time, or so antecedent as not to be fairly considered as part of the same transaction are not admissible in mitigation of damages, no matter how irritating the provocation. Lee v. Woolsey, 19 Johns. 318. See also Beardsley v. Maynard, 4 Wend. 336; Maynard v. Beardsley, 7 Wend. 560.

Insulting and provocative words cannot be considered by the jury in assessing damages, if they were used so long before the assault that there has been time for reflection, and for the passions to cool. But if such insulting words are simultaneous with the assault, they may be considered in mitigation, and the jury may be warranted in giving summary, and, perhaps, nominal damages. Ellsworth v. Thompson, 13 Wend. 662.

It seems that the fact of the defendant being tried in a criminal action for the same assault and battery cannot be given in evidence to mitigate damages in a civil action. Cook v. Ellis, 6 Hill, 466.

For a discussion of what may be shown in aggravation of damages by the plaintiff, and what may be shown by the defendant in mitigation thereof, see Volz v. Blackmar, 64 N. Y. 443.

DEFINITIONS AND DISTINCTIONS.

SUBDIVISION 1. Definitions; distinguished from false im

Definitions; Distinguished from False Imprisonment.

By Code of Civil Procedure, subdivision 9 of section 3343, malicious prosecution is included in the term "personal injuries."

Pollock, p. 7, placing malicious prosecution among personal wrongs, makes a subdivision of the subject, which he classes Wrongs, Affecting the Estate Generally," under which malicious prosecution is placed. This arises from a double classification adopted by this author under which he characterizes the wrongs grouped under personal wrongs as being, generally speaking," willful or wanton," saying that as to acts of this character, they are either intended to do harm, or being evidently likely to cause harm are done with reckless indifference of what may befall by reason of it. It is, however, difficult to see how an action for malicious prosecution can be regarded as a personal wrong," and still be classed as a wrong "affecting the estate generally," since it does

Art. 1. Definitions and Distinctions.

not affect the estate in any way other than do all personal injuries. This is not a practical question in view of the provision of the Code.

Newell on Malicious Prosecution, p. 6, defines this action as a judicial proceeding, instituted by one person against another from wrongful or improper motives, and without cause to sustain it. On p. 22 he analyzes the subject by defining rights of persons to institute civil suits, or criminal prosecution to be:

(1) In criminal matters every person, being interested in the public order, has the right by law, upon probable cause, to make a complaint against an offender.

(2) In civil matters every person believing himself to have a claim against another, having probable cause for such belief, has a right by law to sue therefor; subject only, if his claim be adjudged false, to pay the costs of suit.

(3) In bankruptcy matters any person, being a creditor or having probable cause to believe himself such, may institute proceedings against his debtor if he have probable cause to believe that his debtor has committed an act of bankruptcy."

Citing, as to the latter subdivision, Stewart v. Sonneborn, 98 U. S. 187.

Cooley classes malicious prosecution among the torts affecting personal security. It is the lawful right of every man who believes he has a just demand against another to institute suit in an endeavor to obtain proper redress. It is the lawful right of every man to institute and set on foot criminal proceedings whenever he believes a public offense has been committed. In both these cases it would be impolitic and unjust to make the mere failure of a prosecution an actionable wrong. "Nevertheless it is a duty which every man owes to every other not to institute proceedings maliciously, which he has no good reason to believe are justified by the facts. Therefore an action will lie where there is a concurrence of the following circumstances: (1) Suit or proceeding has been instituted without probable cause therefor. (2) The motive in instituting it was malicious. (3) The prosecution has terminated in the acquittal or discharge of the accused." (2d ed.) 207.

"Malicious prosecution consists in the malicious institution against another of an unsuccessful criminal or bankruptcy or liquidation proceedings, without reasonable or probable cause." Underhill on Torts (7th ed.), 162.