In this case the Plaintiff, Lorenzo Hamilton, sued Clarence Howard for damages resulting from being shot by Howard. Hamilton lost in the trial court and appealed. The Court of Appeals reversed and sent the case back to the trial court; the Court of Appeals saying the trial judge did not give the jury the proper instructions. But why did Howard shoot Hamilton? The Court of Appeals gives us a summary of the testimony, which you will find interesting. (I do not know what happened when the case was retried.)
234 Ky. 321
Hamilton v. Howard.
Court of Appeals
of Kentucky.
Decided May 13,
1930.
Appeal from
Ohio Circuit Court.
HEAVRIN & MARTIN and
GLOVER H. CARY for appellant.
KIRK & BARTLETT for
appellee.
OPINION OF THE COURT BY JUDGE
CLAY.
Reversing.
In this action for assault
and battery by Lorenzo Hamilton against Clarence Howard the jury found for
Howard, and Hamilton appeals.
The petition aptly charges
that on December 17, 1927, the defendant wrongfully, intentionally,
maliciously, and willfully shot and wounded plaintiff with a pistol, and
thereby inflicted on him serious and permanent injury by reason of which he has
been damaged in the sum of $10,000. Howard answered in two paragraphs. In the
first paragraph he denied certain allegations of the petition. The second
paragraph is as follows:
"Pleading further, the
defendant says that at the place and at the time mentioned in the petition
wherein it is alleged that the defendant shot the plaintiff, as described in
the petition the plaintiff assaulted this defendant and was in the act of
attacking the defendant, and, as the defendant verily believed, the plaintiff
was about to inflict serious bodily injuries to the defendant or probably take
defendant's life, and that in acting as the defendant did he did no more than
was necessary to protect himself from the assault and the threatened attack by
the plaintiff.
"The defendant further
states that just before the occasion mentioned and set out in the plaintiff's
petition the plaintiff had wrongfully and without right invaded the defendant's
home and had made overtures to the defendant's wife, and had sought to
ingratiate himself into the affections of defendant's wife and to alienate her
affections from this defendant and had suddenly run from defendant's house
where he had attempted association with the defendant's wife for the purpose
aforesaid, and, as defendant believed, was going to stay nearby in order that
he might re-invade the defendant's home for the purpose aforesaid in
defendant's absence. Whereupon to preserve the peace and to protect defendant's
home from invasion as aforesaid and to protect the defendant's wife from
plaintiff's efforts to alienate her affections as aforesaid, the defendant
modestly spoke to the plaintiff and requested that he desist such invasion of
the defendant's home and such attentions to defendant's wife. Because of which
protestations by the defendant, the plaintiff was about to attack the defendant
and with great or serious injury to the defendant, when the defendant, to
protect himself and in his necessary self-defense as aforesaid and for the
purpose of protecting his home and his wife and preventing further invasion of
his home as aforesaid fired his pistol and this is the shooting mentioned and
referred to in plaintiff's petition."
The facts are these: Howard,
who was 26 years of age at the time of the trial, and Hamilton, who was 29,
were both married and lived a few miles from
Hartford. Howard was related to
Hamilton's wife, and he
and Hamilton had been in business together and on friendly terms. There was
some talk in the neighborhood concerning the frequency of
Hamilton's visits to Howard's home, and the
impropriety of the relations between Hamilton and Mrs. Howard. Howard learned
of this and claims to have observed that
Hamilton
was paying undue attention to his wife. He says that
Hamilton frequently came to his home, and,
instead of joining him, would go around the premises with Mrs. Howard.
Hamilton would go to the
field where Mrs. Howard was at work, and if she were plowing he would follow
her up and down the rows as she plowed while Howard worked in other parts of
the field. For a while Hamilton and Howard were engaged in cutting logs
together. Howard would go by
Hamilton's
home and accompany him to work. Though they would start off together
Hamilton would return to
the Howard home to leave his keys with Mrs. Howard. Though he would generally
join the other workmen later, it is claimed that on one occasion he never
showed up at all after returning to Mrs. Howard's house under the pretext of
taking his keys back to the house. On the day of the shooting Howard said that
he found
Hamilton's
keys at his house on the bed. Howard also said that, if Mrs. Howard was getting
breakfast,
Hamilton
would go to the kitchen where she was; that, if she was milking, he would go
out to the cow lot; that, if she were gearing the mules, he would go to the
barn where she was engaged. Howard says that at first he was not disturbed by
Hamilton's attentions to his wife, but after Hamilton got her picture and went
to telling that he was "having fun with that woman," and that he
(Howard) was going to live with her only until the child got big enough to
work, that caused trouble in his home. Howard then talked to
Hamilton on several occasions and told him
that the neighbors were talking about the matter. He asked
Hamilton to stay away from his house.
Hamilton "just
laughed," and said he guessed he could.
Hamilton did not stay away, but kept up his
attentions to Mrs. Howard. Howard again remonstrated and warned him to stay
away. After that they would not work together. Howard's father, who had
observed
Hamilton's attentions to Howard's wife,
warned and advised
Hamilton
to stay away. Howard told
Hamilton
he was going to hurt him if he did not stay away. Howard describes the
difficulty in the following language:
"I had been hauling
coal for my brother and got in just a little before sundown and I was coming up
the road and I seen my wife get a load of wood and go back in the house and
just about that time he come out the same door she went in and he taken up
through the woods and orchard circling for E.K. Moseley's, and I went up and
got my gun and went toward where he was at, and I walked up and asked him if I
hadn't told him to stay away, and talked to him and cried and begged him to
stay away, and then I cursed him and told him to stay away, he acknowledged I
had, and I told him I had talked every way I could to get him to stay away and
I had another remedy I would try to see if that would do.
"Q. Did you tell him
you were going to kill him? A. No, sir, I told him I didn't aim to kill him and
he need not think it.
"Q. What did he say? A.
He didn't say anything.
"Q. I mean when you
told him you had asked him to stay away? A. He finally murmured out, after I
asked the second time, once.
"Q. Did you ask him on
more than one occasion to stay away? A. Several times, more than once.
"Q. But he said `once'?
A. Yes, he acknowledged once.
"Q. Then you did shoot
him? A. Yes, sir.
"Q. What occurred after
that? A. Well, after the shooting occurred, the first thing he said was that he
said `Go call the doctor, Lige,' and I started for the doctor, and I asked him
if he wanted me to take him in the house and he said yes, and I asked him if he
wanted me to take him home and he said no, and I said all right then, and in a
minute or so he said yes, you can take me home if you want to and I went down
to the house and got the wagon and spring seat and hauled him home."
Mrs. Ethel Howard, a
sister-in-law of Clarence Howard, testified that about 5:30 or 6:00 o'clock on
the evening of December 17, 1927, as she approached Howard's home, she saw a
fellow she took to be Hamilton at the back of the house. E.K. Moseley, who
lived about 250 yards from Howard, and on whose premises the shooting occurred,
testified that he was at the chip yard engaged in chopping some stove wood when
Hamilton came up, and gives the following account of the shooting:
"Yes, sir, he came down
the back way and told me not to let the dog bite him, and I told him to come
ahead, and he come and set down on a pile of wood and he had been there four or
five minutes when I looked up and seen Clarence coming up with his revolver and
I never said anything, and he said, `Lo, I caught you this time' and he said I
have begged and persuaded you to stay away from my house and I am going to try
another plan.
"Q. Did he tell him he
had agreed — A. Yes, sir, he said he had begged and cried —
"Q. What did
Hamilton say when Howard
told him he had told him to stay away from his home? A. He said he might have
told him once. He denied being there.
"Q. He shot him three
times? A. He shot three times, reckon he hit him every time."
On cross-examination Moseley
stated that
Hamilton
had been there something like three, four, or five minutes, when the shooting
occurred.
Hamilton
told Howard that he had not been to his house. When shot
Hamilton was sitting on a block of wood at
the wood pile and did not undertake to do a thing in the world, "and made
no move like he would."
On the other hand,
Hamilton testified that
he had a wife and three children, and had known Howard all of his life. He had
been in the habit of going to Howard's home to see all of them, and not
particularly to see Mrs. Howard any more than Mr. Howard. His particular
business in going there was to buy white mule from Clarence. Clarence had told
him to go there whether Clarence was there or not, and he would go there some
two or three times a week. On the occasion in question he started up to Lige
Moseley's and passed through Clarence Howard's lot. He had to go that way.
Clarence's wife was standing in the door. He inquired where was Clarence, and
she said he had gone to the coal bank and would be back about 4 o'clock. It was
then a little after 4, and she said he ought to be there by that time. He said,
"I am going up to Lige's." He then went through the apple orchard and
looked at some saplings. He did not stop at Clarence's house, or go in the
house. He did not run out the back door or through the woods. On reaching
Moseley's he found Moseley chopping wood and told him not to let the dog bite
him. Moseley said he would not, and he sat down by Moseley and engaged in
conversation about a hog. While sitting there with his feet crossed Clarence
Howard came up and said something. He said to Clarence, "What do you
mean?" and Clarence commenced shooting. He was shot in each knee, and one
shot penetrated his leg higher up. He suffered a great deal from his wounds,
and was still suffering. His knees were stiff and were not getting any better.
Never at any time did Clarence talk to him about not going to his house, or
accuse him of being too intimate with his wife. He did see Clarence Howard's
father, Clarence, and his wife, in the cornfield. She was not plowing at all.
He walked around a while and talked to all of them. Estill Howard never called
him off or advised him not to go to Clarence's place. Estill Howard did ask him
what he had come for, and he told him he had come to get a quart of liquor. On
several occasions he went with different parties to Clarence's home to get
liquor. Brownlow Gossett never told him to stay away. On the occasion when he
was shot he never attempted to do anything to Howard. He never tried to hurt
him in any way. On cross-examination he testified that on the evening of the
shooting he just passed by Howard's premises, and stopped and talked to his
wife for a minute. It was cold that afternoon. He did not have any whisky with
him, and had not been drinking that day. Sometimes he drank right smart. He
could drink a quart a day. He did not get any whisky on that occasion. When he
was at the home he judged it was about 4 o'clock. He thought he would see
Clarence if he was there. It made no particular difference whether he saw him
that day or not. His wife said that Clarence might be there pretty soon and
might not be there until after dark. He did not wait for Clarence. He wanted to
see Lige. He did not hear the wagon coming. At the time of his talking to
Clarence's wife he was about 20 steps from the big road. He aimed to see
Clarence as he came back by home. He aimed to come back that night and see him
about the splicing as soon as Lige told him whether he would buy the hog or
not. Dr. I.J. Hoover deposed that
Hamilton
was shot twice in one leg and once in the other. He had been shot through both
knees. Such injuries as he saw produced pain and suffering. Both legs were
X-rayed, the bullets removed from the knee joints and the joints irrigated with
ether and closed. Such wounds do not usually give any permanent injury unless
infected, and no infection followed the operation. In his opinion the injury
was not permanent. In rebuttal Howard testified he never saw a quart of whisky
on the day they were plowing or at any other time. Estill Howard testified that
on the occasion when
Hamilton
came into the cornfield there was no talk about whisky.
Over the objection of
plaintiff the court instructed the jury as follows:
"I. The court instructs
the jury that you should find for the plaintiff and award him in damages such
sum as you may believe from the evidence will fairly and reasonably compensate
him for any impairment of his power to labor and earn money resulting directly
from the shooting and wounding described to you in evidence, and for the pain
and suffering which was caused to him by such shooting, unless you believe as
set out in Instruction No. II, but if you believe as in Instruction No. II you
will find for the defendant.
"II. The defendant had
the right to protect his home from intrusion or invasion and if you believe
from the evidence that before the occasion on which the plaintiff was shot by
defendant, as described to you in evidence, the plaintiff had invaded the
defendant's home or had made overtures to the defendant's wife or had sought to
ingratiate himself into the affections of defendant's wife or to alienate her
affections from the defendant and that the defendant had requested the
plaintiff not to go to the defendant's home or to stay away from defendant's
home or to desist his attentions to defendant's wife, and if you believe from
the evidence plaintiff failed to heed said warnings, if any were given him, and
if you believe from the evidence that in shooting and wounding the plaintiff,
as described to you in the evidence, the defendant used only such force as was
reasonably necessary to prevent the plaintiff from further invading the
defendant's home or paying attention to the defendant's wife, then you should
find for the defendant.
"III. If you find for
the plaintiff you may award him such sum by compensatory damages as you may
believe from the evidence will compensate him for any physical or mental
suffering which he endured, or for any impairment of his power to earn money as
you may believe would be the proximate and necessary result of his injury, if
any. And if you believe from the evidence that the defendant, not in the
necessary or to him apparently necessary defense of himself or his home, as
supposed to you in Instruction No. II, wantonly and maliciously assaulted and
shot the plaintiff, you may award the plaintiff punitive damages, but the
entire amount that you may allow to the plaintiff shall not exceed the sum of
$10,563.00, the amount claimed in the petition."
The argument in support of
the defense pleaded in paragraph 2 of the answer and of instruction No. 2 given
by the court may be summarized as follows:
Hamilton was paying undue and improper
attention to Howard's wife, and was endeavoring to win his way into her
affections. Though warned by Howard and others to stay away from his home,
Hamilton did not stay away,
but persisted in his attentions and intrusions. The immediate act of
Hamilton in running away
from the Howard home was not the cause of the shooting. It was merely the straw
that broke the camel's back. It was but one of a long series of oft-repeated and
recurring offenses. Patience had ceased to be a virtue. Numerous warnings and
commands had proved ineffective. The time had come when Howard was compelled to
use some force or stand by and see
Hamilton
continue to invade his home and impose himself upon his wife. "If there
was a drop of red-blooded manhood about Howard; if he cared a whit for his home
and family; if he was any part of a man at all, it was time for him to act and
to act with force and effectiveness, in the protection of his castle and those
in it who were dependent upon him. Whether Howard was trying to prevent
Hamilton from stealing his wife's affections, thus breaking up his home, or was
trying to protect his wife from undue influence and embarrassment and protect
his home from the tongue of evil report and bad repute in the community, he had
the right to protect his home against invasion for either purpose, and since
the force he used was patently necessary and undeniably effective, and actually
resulted in but little temporary damage, the verdict of the jury in favor of
Howard should not be set aside. Though the rule contended for is ably and
plausibly presented, and though it may strike a popular chord and find some
support in the views of many people, it is not the law and cannot be sanctioned
by the courts. The right to act in defense of one's home is confined to cases
of attempted forcible entry for the purpose of committing a felony or of
inflicting great bodily harm or offering personal violence to a person dwelling
or being therein, and to cases of attack or attempted attack on the home with
firearms for any one of such purposes. It has never been applied where the
person wounded or killed was off the premises, and was not then engaged in any
kind of attack on the home. It matters not that
Hamilton's conduct was reprehensible, or that
Howard's provocation was very great. Howard could not follow Hamilton off his
premises and to the premises of another 250 yards distant and shoot and wound
him while he was quietly talking to another and making no attempt to attack the
Howard home in any manner whatsoever, and justify on the ground that he acted
in defense of his home. Though the situation was a trying one, and calculated
to arouse one's sympathy, after all it is simply a case where Howard took the
law in his own hands and shot and wounded
Hamilton
to punish him for what he had done, and to deter him from future attentions to
his wife. In the circumstances, the facts relied on, even if Howard's theory of
the case be accepted, constituted no defense so far as compensatory damages
were concerned, and instruction No. 2 submitting the defense of home should not
have been given.
However, the facts pleaded
and proved are admissible for another purpose. It was the rule at common law
that the defendant could not give in evidence in mitigation of damages the acts
or declarations of the plaintiff at a different time, or any antecedent acts
which were not fairly to be considered a part of one and the same transaction,
though they may have been ever so irritating or provoking. Recognizing the
harshness of this rule, the Legislature in the year 1906 enacted what is now
section 73a-1, Kentucky Statutes, reading as follows: "In all civil
actions for damages inflicted by an assault, or by an assault and battery, the
defendant shall have the right to plead as a defense to the claim for punitive
damages, and to introduce in evidence in mitigation of damages, any matter of
provocation which preceded the assault or assault and battery. If the matter of
provocation prompted the assault or assault and battery, and was of a nature as
to cause a person of ordinary prudence and judgment to take the action taken by
the defendant."
The statute has been
construed in several cases, and it uniformly has been held that matters of
provocation preceding the assault and battery may be pleaded and proved in
mitigation of punitive damages, but not of compensatory damages. We think the
provocation relied on by Howard falls within the statute, and could be proved
in mitigation of punitive damages.
Though pleaded and sought in
the petition, the court did not authorize a finding for reasonable medical and
hospital bills incurred. It is insisted that this was proper, because the bills
were paid by
Hamilton's
father and not by him. The evidence, however, discloses that
Hamilton's father paid the hospital and
medical bills of $153 for his son, and that his son said he would pay him. The
case being one where the father may sue and recover from the son, there can be
no doubt that the son may recover from him who caused the injury.
There is no substantial
evidence in the record that
Hamilton's
injuries are permanent. That being true, he is not entitled to recover for the
permanent impairment of his power to earn money, but only for the temporary
impairment thereof during such time as the jury may believe from the evidence
such impairment has continued.
On the return of the case
the court will instruct the jury as follows:
"1. You will find for
plaintiff and award him such sum in damages as you may believe from the
evidence will fairly compensate him for his reasonable hospital and medical
bills, if any, not exceeding the sum of $153.00; for his mental and physical
suffering, if any, directly resulting from the injuries inflicted by defendant,
and for the temporary impairment, if any, of his power to earn money directly
resulting from his injuries during such time as you may believe from the
evidence such impairment, if any, has continued, but not exceeding in all the
sum of $10,153.00, the amount claimed in the petition."
"2. If you believe that
defendant wantonly and maliciously shot and wounded and injured plaintiff, you
may in addition to compensatory damages award plaintiff punitive damages, not
exceeding in all the sum of $10,000.00. If, however, you believe from the
evidence that plaintiff gave to the defendant such provocation to assault and
injure plaintiff as would cause an ordinarily prudent man under like or similar
circumstances so to assault and injure plaintiff, and that such provocation, if
any, did prompt defendant to assault and injure plaintiff, you may consider
such provocation, if any, in mitigation of the punitive damages, if any, which
you may find for plaintiff."
Judgment reversed, and cause
remanded for a new trial consistent with this opinion.
