Davis v. George
| Decision Date | 07 March 1912 |
| Docket Number | 21633 |
| Citation | 87 So. 274,124 Miss. 808 |
| Court | Mississippi Supreme Court |
| Parties | DAVIS v. GEORGE |
ASSAULT AND BATTERY. Peremptory instruction for plaintiff on conflicting evidence held erroneous.
In an action for the recovery of damages for an assault and battery, when the evidence is conflicting as to who was the aggressor in the difficulty, and fails to show that the battery was so excessive or unreasonable as to deprive defendant of the right to defend upon the ground that the difficulty was provoked by plaintiff, a peremptory instruction for plaintiff is erroneous.
APPEAL from circuit court of Tishomingo county, HON. C. P. LONG Judge.
Action by D. L. George against M. M. Davis. Judgment for plaintiff and defendant appeals. Reversed and remanded.
Reversed and remanded.
Geo. T. Mitchel, for appellant.
It is my understanding of the law, and I think it is so generally understood that the granting of a peremptory instruction is proper only where there is no testimony tending to make out the opposite party's case. It is surely unnecessary to cite authorities on this proposition. It is well settled that where plaintiff requests a peremptory instruction, the evidence is to be taken most strongly against him. American Trading Co. v. Ingram Day Lbr. Co., 110 Miss. 31, 69 So. 707. A multitude of authorities might be cited to this effect, but I deem it unnecessary.
All the testimony for the defendant goes to show that plaintiff struck the first lick at a time when defendant was doing nothing or trying to do anything to him, that defendant did nothing more than any other man would have done under the circumstances, that the battery was not excessive or unreasonable, but that he was simply preventing plaintiff from getting the advantage of him and continuing his assault upon him. I therefore respectfully submit that the granting of the peremptory instruction for plaintiff constituted reversible error. It all was a question for the jury.
I insist that the refusal to grant charge No. 1 asked by defendant constitutes reversible error. That charge is in the following words: "The court charges the jury that if you believe from the evidence that plaintiff, at a time when defendant was doing nothing nor trying to do anything to him, struck defendant the first lick and that defendant as a reasonable man situated as he was, deemed it necessary to strike plaintiff to prevent plaintiff striking him again, then the court says to you that defendant had a perfect right under the law to strike plaintiff and you will find your verdict for defendant."
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Western Union Telegraph Co. v. Stacy
... ... in favor of appellant Western Union Telegraph Co ... Jamison ... v. Mosely, 69 Miss. 468, 10 So. 582; Davis v ... George, 124 Miss. 808, 87 So. 274; Stamps v. Polk, 143 ... Miss. 551, 108 So. 729 ... The ... record shows that at the time of ... ...
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Ripley v. Wilson
...useless, of course, to cite authorities to the effect that it is error to grant a peremptory charge when the evidence conflicts. Davis v. George, 87 So. 274. Even it be admitted, for argument's sake alone, that Ripley, in turning to the right to avoid a collision made a mistake, and it woul......