
    Mitchell v. Gambill.
    
      Action of Trespass to recover Damages for Assault and Battery.
    
    1. Action of trespass for assault and battery; justification must be specially pleaded. — In an action of trespass to recover damages for an assault and battery, the matter in justification of the alleged assault must be specially pleaded, and evidence in reference. thereto is not admissible under the plea of the general issue.
    2. Same; statute as to justification not applicable to civil suits. The statute which authorizes a person on trial for an assault and battery to introduce evidence that the person assaulted used abusive or opprobrious language towards him, in justification or extenuation of the offense, (Cr. Code, §4345,) has no application to civil actions of trespass to recover damages for an assault and battery; but applies alone to criminal prosecutions for the offenses named in the statute.
    3. Action for assault and battery; punitive damages; admissibility of evidence. — Since in an action of trespass to recover for an assault and battery, the plaintiff may be entitled to recover punitive or vindictive damages, it is permissible in such an action to prove the language used by the plaintiff at the time of the assault and battery, since such language is competent for the jury to consider in mitigation of punitive damages, but such evidence can not reduce the recovery of actual damages sustained by plaintiff.
    Appeal from tbe Circuit Court of Jefferson.
    Tried before tbe Hon. A. A. Coleman.
    Tbis was an action brought by tbe appellant, James A. Hitcbell, against tbe appellee, A. A. Gambill, to recover for an assault and battery committed by tbe defendant on tbe plaintiff. Tbe complaint was in • tbe Code form. Tbe defendant pleaded six pleas. Tbe 1st, 2d and 3d pleas were tbe general issue. Tbe other pleas numbered 4, 5 and 6 were, upon tbe motion of tbe defendant, withdrawn.
    On tbe trial of tbe case it was shown that tbe defendant bad committed an assault and battery upon tbe defendant. It was further shown that tbe assault and battery vas tbe result of a dispute or quarrel between tbe plaintiff and defendant. During tbis quarrel tbe defendant called the plaintiff a liar,-whereupon tbe plainitff used a most opprobrious epithet towards tbe defendant, and tbe defendant thereupon assaulted and struck him several times.
    During tbe argument of tbe defendant’s counsel be read to tbe court in tbe presence of tbe jury section 4345 of tbe Criminal Code of 1896. Tbe plaintiff objected to tbe reading of tbis section by tbe defendant’s counsel, and duly excepted to tbe court’s. overruling bis objection.
    Upon tbe request of tbe plaintiff, tbe court gave its general charge to tbe jury in writing. Tbe plaintiff separately excepted to tbe following portion of tbe court’s general charge, which are numbered for convenience: (10.) Tbe defendant may also be allowed to prove that at tbe time or just immediately before, tbe plaintiff used rude, vulgar, or insulting language to him or about him, and that immediately thereupon be struck tbe blow or blows. Tbe jury trying tbe case may look to and consider such rude, vulgar, or insolent language in mitigation of damages or in justification.” (12.) “If tbe jury in their sound discretion and examination of all tbe evidence and facts should consider that tbe defendant was justified in striking plaintiff, they have a right so to find, and if they so find, they must find a verdict in favor of the defendant.” (13.) “If tbe jury, after due consideration of all tbe evidence and facts in this case, are reasonably satisfied that plaintiff brought on by bis own acts tbe difficulty between himself and defendant, and defendant did not carry bis assault and battery to an unreasonable or unlawful extent, then plaintiff could not recover in this action.”
    Among tbe other charges requested by tbe plaintiff, and to tbe refusal to give which tbe plaintiff separately excepted, was tbe following: (7.) “Tbe court charges you, gentlemen of tbe jury, that opprobrious words and abusive language used by the plaintiff at and about the time of tbe alleged assault may be considered by you only in mitigation of punitive damages; and tbe plaintiff is entitled to recover actual damages in the way of compensation for bis physical suffering and inconvenience and mental suffering, in case you find tbe assault and battery was committed, whatever may have been tbe words used by tbe plaintiff.”
    There were verdict and judgment for tbe plaintiff, assessing bis damages at $2.50. Plaintiff appeals, and assigns as error tbe several rulings of the trial court, to which exceptions were reserved.
    
      W. T. Hill, for appellant.
    The court should have given the 7th charge requested by the plaintiff, to the effect that any opprobrious words or abusive language that may have been used by the plaintiff could be considered by the jury in mitigation of punitive damages only; and the plaintiff was entitled to recover compensatory damages, whatever may have been the words used by him. This is undoubtedly the law according to the weight of authority. — 12 Am. & Eng. Encyc. Law, (2d ed) pp. 44, 45 and 46; 2 Am. & Eng. Encyc. Law, (2d ed.) p. 996; Corcoran v. Horran, 55 Wis. 120; Prentis v. Slum, 56 Me. 427; 96 Am. Dec. 475.
    Mere words do not constitute a legal excuse for an assault. — Keiser v. Smith, 71 Ala. 481; 2 Am. ’& Eng. Law, (2d ed.) 957; Goldsmith v. Joy, (Vt.)4 L. It. A. 500, and cases cited; Handle v. Geiler, 50 Atl. Rep. 632.
    J. J. Altman, contra.
    
   DOWDELL, J.

This is an action of trespass for assault and battery. The complaint is in Code form. The three pleas to the complaint upon which issue was taken and the cause tried, presented in different forms the general issue. Under this issue, matter in justification of the alleged assault is not competent in evidence. Such defense must be specially pleaded.—Lunsford v. Walker, 93 Ala. 36.

Section 4345 of the Criminal Code of 1896, which provides that, “on the trial of any person for an assault, an assault and battery, or an affray, he may give in evidence any opprobrious words or abusive language used by the person assaulted or beaten at or near the time of the assault or affray; and such evidence shall be good in extenuation or justification, as the jury may determine,” has no application to civil actions for damages, and applies alone to criminal prosecutions for the offenses named in the statute.—Prior v. State, 77 Ala. 56. Moreover, as was said in Brown v. State, 74 Ala. 42, this statute was “intended as a shield and not as a sword,” and it cannot be invoiced by a defendant who first used, insulting words, and struck the first blow. But independent of the statute, in a civil action for damages at the common law, while mere words, although of provocation, do not constitute a defense to the action, yet when used at the time or immediately preceding the battery, they may be shown in evidence under the general issue in mitigation of damages.—Keiser v. Smith, 71 Ala. 481; 46 Am. Rep. 312, and authorities there cited.

Since the recovery in actions of this nature may include punitive or vindictive damages, as well as actual damages, the language used by the plaintiff at the time of the transaction, was competent in evidence, and it was permissible for the jury to consider it in mitigation of punitive damages, but not of any actual damages sustained by the plaintiff.

Charge seven requested by the plaintiff correctly stated the law and its refusal was error. What we have said above sufficiently expresses our views as to the rulings of the court complained of, for the purpose of another trial. For the error indicated, the judgment of the circuit court must be reversed and the cause remanded.

Reversed and remanded.  