Davis v. George , 124 Miss. 808 ( 1921 )

W. H. Cook, J.,

delivered the opinion of the court.

This is an action by appellee, D. L. George, against appellant, M. M. Davis, for the recovery of damages alleged to have been sustained by reason of an assault and battery committed upon him by appellant, and from a verdict and judgment for appellee for the sum of one hundred dollars this appeal was prosecuted.

At the conclusion of the testimony the court refused an instruction for appellant, which correctly announced the law applicable to the defense offered, and granted appellee a peremptory instruction for actual damages, and submitted the case to the jury upon the question of punitive damages and for the assessment of damages.

There is a sharp conflict in the testimony as to who was the aggressor in the difficulty. The appellant and a bystander testified that appellee provoked the difficulty, and that, without provocation and without any notice of warning to appellant, he struck the first blow. The testimony fails to show that the battery was so excessive or unreasonable as to deprive appellant of the right to defend upon the ground that the difficulty urns provoked by appellee. In this state of the record it ivas error to grant the peremptory instruction for appellee, and the cause should haATe been submitted to the jury under proper instructions.

Reversed and remanded.