Hutcheson v. Browning

• Citation: 34 Ga.App. 276,129 S.E. 125
• Decision Date: 21 August 1925
• Docket Number: (No. 16132.)
• Parties: HUTCHESON. v. BROWNING.
• Court: United States Court of Appeals (Georgia)

34 Ga.App. 276

129 S.E. 125

HUTCHESON.

v.BROWNING.

(No. 16132.)

Court of Appeals of Georgia,

Division No. 2,

Aug. 21, 1925.

(Syllabus by Editorial Staff.)

Error from City Court of Polk County; J. L. Tison, Judge.

Action by D. C. Browning against G. H. Hutcheson. Judgment for plaintiff, and defendant brings error. Reversed.

E. S. Ault, of Cedartown, for plaintiff in error.

John K. Davis, of Cedartown, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, P. J:

[1] 1. In defenses to actions in tort, "what does not amount to justification may be pleaded in extenuation and mitigation of damages." Civil Code 1910, § 44S9. When the defendant has introduced testimony tending to sustain a plea of justification, "though it fails to make it out, the jury may take such testimony into consideration in mitigation of damages." Henderson v. Fox, SO Ga. 479 (2), 6 S. E. 164; Ransone v. Christian, 49 Ga. 491; Ivester v. Coe, 33 Ga. App. 620, 127 S. E. 790, 792, 793; 5 Corpus Juris, 674 (§ 112).

2. Notwithstanding the apparent dictum in Wall v. State, 69 Ga. 766 (2), that the doctrine of reasonable fears "does not seem to apply to assault and battery, " it is the general rule, recognized in this state, that for the purpose of mitigating damages, as well as for justification, in a civil action, the jury are not limited merely to "opprobrious words, or abusive language, " used by the person assaulted (see Penal Code, § 103; Thompson v. Shelverton, 131 Ga. 714, 63 S. E. 220; Berkner v. Dannenberg, 116 Ga. 954, 963, 43 S. E. 463, 60 L. R. A. 559), but may consider the actions and conduct of the plaintiff at the time of the assault, with other facts, in determining if force, and what degree of force, on the part of the defendant was justified, and if not justified, what, if any, effect should be given to such facts as in mitigation. See Dannenberg v. Berkner, 118 Ga. 8S5 (2, 3), 889, 890, 45 S. E. 682; 5 Corpus Juris, 677, 678 (§ 118), 674, note (a).

3. It is the duty of the trial court to charge upon all the vital and substantial issues and contentions raised by the pleadings and evidence; and it is error to omit to charge upon a main ground of defense, even without a request. City Electric Ry. Co. v. Shropshire, 101 Ga. 33 (1, 2), 37, 38, 28 S. E. 508; Cen. R. R. v. Harris, 76 Ga. 501; Atlanta Ry. Co. v. Gaston, 118 Ga. 418, 45 S. E. 508.

4. It is the rule that, where the judge has correctly stated at length the contentions of the parties, the further instruction that "these pleadings will go out with you, and it will be your further privilege and duty to read them over, and ascertain just what they contain, " and that, "if there are issues that I have not referred to, you ought to learn what these issues are from these pleadings when you go out, " will not furnish ground for a reversal of the judgment. Woodward v. Fuller, 145 Ga. 252 (1), 88 S. E. 974. It is also the general rule that, where the court has "instructed the jury that they would find the contentions of the parties set out in the pleadings, " such a "reference to the pleadings as containing such contentions will suffice, unless the special facts of the case may require a formal statement of the actual issues in order to prevent possible misapprehension." Jones v. McElroy, 134 Ga. 859 (3), 68 S. E. 857, 137 Am. St. Rep. 276; Cen. of Ga. Ry. Co. v. McKinney, 118 Ga. 535, 538, 45 S. E. 430; Port Wentworth Terminal Corp. v. Leavitt, 28 Ga. App. 82, 84, 110 S. E. 686.

But where, as here, in an action for damages for an assault and battery on account of the defendant having struck the plaintiff with his hand, the defendant has pleaded as justification not only that the plaintiff at the time used opprobrious words and abusive language, but was standing "in an angry and threatening attitude in the immediate vicinity of this defendant, with a walking stick in his hand, " that "provoked and justified by such opprobrious words and abusive language, and justified by the threatening attitude of the plaintiff, " the defendant had struck with his open hand, and that the defendant was justified "by reason of plaintiff's conduct, and by the opprobrious words and abusive language used, " and where there was evidence tending to support both of these defenses, and to show that the plaintiff had drawn his stick upward with...