October 1, 2012

Fitzgerald v. Barker, Pulaski, 1830

Fitzgerald vs. Barker.

COURT OF APPEALS OF KENTUCKY

27 Ky. 398; 1830 Ky. LEXIS 289; 4 J.J. Marsh. 398

October 8, 1830, Decided

PRIOR HISTORY:  [**1]  Error to the Pulaski Circuit; JOHN L. BRIDGES, Judge.

DISPOSITION: Judgment affirmed, with costs and damages.

COUNSEL: Owsley, for plaintiffs; Cunningham, for defendant.

JUDGES: Chief Justice ROBERTSON.

OPINION BY: ROBERTSON

OPINION

 [*398]  Chief Justice ROBERTSON, delivered the opinion of the court.

BARKER obtained a judgment against Fitzgerald and others for $ 80, for an assault and battery. They have prosecuted a writ of error with a supersedeas, and rely on two grounds for a reversal of judgment.

1st. That the circuit court erred in refusing, on their motion, to instruct the jury that they might find several damages against such of the defendants in the action as should be ascertained to be guilty.

2d. That the court erred in overruling a motion for a new trial.

The first ground is evidently untenable. If the jury had assessed several damages, the plaintiff would have elected "de meloribus damnis," and the defendants who were found guilty, would all have been bound by the  [*399]  judgment, and might of course, have been made contributory. Therefore, the plaintiffs in error could not have been benefitted by the instruction, if the court had given it, and consequently, they have not been injured [**2]  by the refusal to give it.

On the 2d point we had some difficulty. There was no positive evidence of an assault or battery by one of the plaintiffs in error; and the facts from which his agency in the battery, could be inferred, are slight in the extreme. Indeed the weight of probability is in favor of his neutrality. But the verdict against him cannot be said to be without any evidence. Considering the character of the battery, the verdict must be admitted to be light and inconsiderable. In such cases, the damages being small, regard to long and well established practice, will not allow a new trial, when there is any evidence, direct or inferential, which may sustain the verdict.

Wherefore, although we granted a supersedeas, we must affirm the judgment of the circuit court.

Judgment affirmed, with costs and damages.

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