Thompson v. Shelverton

• Decision Date: 19 December 1908
• Citation: 131 Ga. 714,63 S.E. 220
• Parties: THOMPSON . v. SHELVERTON.
• Court: Georgia Supreme Court

63 S.E. 220

131 Ga. 714

THOMPSON .

v.SHELVERTON.

Supreme Court of Georgia.

Dec. 19, 1908.

1. Assault and Battery (§§ 30, 42^*)—Evidence — Admissibility — Abusive Language by Plaintiff—Question for Jury. In an action for damages on account of an assault and battery, the defendant may give

in evidence any opprobrious words or abusive language used by the plaintiff to him in order to justify his conduct or mitigate the damages; and it is for the jury to determine, in view of the character of the provocation and the nature and extent of the battery, whether such opprobrious words or abusive language amount to a justification, or only to a mitigation of damages recoverable.

[Ed. Note.—For other cases, see Assault and Battery, Cent. Dig. §§ 40, 56; Dec. Dig. §§ 30, 42.^*]

2. Justification—Mitigation of Damages.

The reasoning of Mr. Justice Fish, now Chief Justice, as expressed in the dissenting opinion in Berkner v. Dannenberg, 116 Ga. 954. 963, 43 S. E. 463, 60 L. R. A. 559, is approved and controls the present case. The decision made in that case upon the point dealt with in the foregoing headnote was not by the entire bench, but by three justices only; and while the judgment announced by the majority of the court was controlling and could not be reviewed in the same case, and was followed in Dannenberg v. Berkner, 118 Ga. 885, 45 S. E. 682, the principle did not thereby become the adjudication of the entire bench. In connection with the dissenting opinion in the case of Dau-nenberg v. Berkner, supra, see Pen. Code 1895, § 103, and Cross v. Carter, 100 Ga. 632, 28 S.-E. 390.

3. Sufficiency of Evidence.

The evidence was sufficient to support the verdict, and there was no error in overruling the motion for new trial.

(Syllabus by the Court.)

Error from Superior Court, Cobb County; Geo. F. Gober, Judge.

Action between C. H. Thompson and C. J. Shelverton. From the judgment, Thompson brings error. Affirmed.

H. B. Moss, for plaintiff in error.

J. Z. Foster, for defendant in error.

ATKINSON, J. Judgment affirmed. All the Justices concur.

*.For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

^2-*For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes