Rarden v. Maddox

• Decision Date: 01 December 1904
• Citation: 39 So. 95,141 Ala. 506
• Parties: RARDEN v. MADDOX.
• Court: Alabama Supreme Court

39 So. 95

141 Ala. 506

RARDEN v. MADDOX.

Supreme Court of Alabama

December 1, 1904

Appeal from City Court of Bessemer; B. Clay Jones, Judge.

Action for assault and battery by John D. Maddox against John W Rarden. From a judgment for plaintiff, defendant appeals. Reversed.

The defendant pleaded the general issue, and by special plea set up justification of the assault by the fact that the plaintiff came into the defendant's storehouse and place of business and used abusive language and opprobrious epithets to him, thereby provoking the defendant to assault him. To this special plea the plaintiff demurred, upon the ground that the facts set up in said plea did not justify the assault and battery complained of. These demurrers were sustained. There were verdict and judgment for the plaintiff sustaining his damages at $20. The judgment entry, after reciting the finding of the jury, then continued as follows "It is therefore considered and adjudged by the court that the plaintiff have and recover of the defendant the sum of $20 so assessed as aforesaid, together with all the costs in this behalf expended, for which let execution issue." The defendant appeals, and assigns as error the rulings of the court in sustaining plaintiff's demurrers to defendant's pleas, and that the court did not limit the plaintiff's recovery of costs to the amount of damages assessed by the jury.

Pinkney Scott, for appellant.

W. S Welch, for appellee.

DOWDELL J.

In an action for damages for assault and battery, abusive language and epithets by the plaintiff to the defendant cannot be pleaded by the latter in justification of the assault. Such may, however, be shown in evidence, when made at or about the time of the assault, in mitigation of the damages sought to be recovered. The special pleas to which demurrers were sustained set up the abusive language in justification of the alleged assault. There was no error in sustaining the demurrers. See Mitchell's Case (Ala.) 37 So. 290.

There was no bill of exceptions reserved on the trial, and the appeal is taken on the record. By the recital in the judgment it is shown that the verdict of the jury was for the plaintiff for $20. The judgment of the court on this verdict awarded all costs against the defendant. The statute (section 1326 of the Code of 1896) provides that "in all actions to recover damages for torts, the plaintiff recovers no more costs than damages, where...