Choate v. Pierce , 126 Miss. 209 ( 1921 )

Anderson, J.,

delivered the opinion' of the court.

This is a suit by the appellant against the appellee for damages claimed to have been suffered by him as a result of an assault and battery committed upon him by the appellee. There was a verdict and judgment for the appellee, from which the appellant appeals to this court.

The evidence is conflicting. That on behalf of the appellant tends to show that the appellee committed an assault and battery upon him without any provocation; that the appellee ivas the aggressor in the altercation, and not. the appellant. On the other hand, the evidence on behalf of the appellee tends to establish that the appellant was the aggressor; that the appellant used offensive añd insulting language toward the appellee, and the latter thereupon immediately struck the appellant Avith his hand.

The giving of instruction No. 3 on behalf of the appellee is assigned as error. That instruction is in this language:

“The court further instructs the jury for the defendant that if you believe from the testimony that just before the defendant struck the plaintiff, plaintiff used insulting Avords to the defendant of and concerning the defendant’s Avife, and that these insulting words were the cause of the defendant’s striking plaintiff, you will take this fact into consideration in arriving at your verdict; and, if you believe from the testimony that these insulting words spoken by plaintiff Avere sufficient cause for the defendant to strike plaintiff, then you will find for defendant.”

At common laAv insulting words, no matter how offensive or exasperating, nor how much they might be calculated to excite or irritate, would not excuse or justify an assault and battery. 5 C. J. 644, 645.

The court beloAV in the trial of this-case proceeded on the idea that our criminal statute (section 1501, Code of 1906; section 1259, Hemingway’s Code) should be applied to the civil action of assault and battery. That statute provides:

“In all trials for assault and battery, or for an assault, the defendant may give in evidence, in excuse or justification, any insulting words used by the person on whom the assault or assault and battery was committed, at the time of the commission thereof, towards the defendant, and the jury may consider and determine whether such words were or were not a sufficient excuse for or justification of the offense committed.”

The courts are not agreed as to whether statutes of this character apply to civil cases of assault, and assault and battery, or are limited in their application to criminal prosecutions for those offenses. 5 R. C. L. 645. In the notes to the above reference of Ruling Case Law the cases aligned on each side of this question are set down. It Avill be seen from those notes that this court is aligned Avith those jurisdictions holding that the statute should be applied to civil as Avell as criminal actions of assault and assault and battery; and the cases of Stone v. Heggie, 82 Miss. 410, 34 So. 146, and Lizana v. Lang, 90 Miss. 469, 43 So. 477, are referred to as so holding. An examination of those cases, however, Avill shoAV that this question was not discussed; in each of them the court assumed that the principle embodied in this criminal statute applied to like civil causes as well. In Stone v. Heggie, it was held that, while insulting words would not excuse ■ or justify assault and battery with a deadly weapon, yet the party insulted might use a stick, provided he did not use it in the manner of a deadly weapon.

It appears to the court it Avould be an unusual state of the laAV to hold that it was a question for the jury to determine Avhether insulting Avords Avere a sufficient excuse or justification of a criminal charge of assault and battery, while in a civil action of the same character that such Avords Avere no excuse or justification. However, be that as it may, Ave see no reason now for disturbing what was at least the implied holding of this court in Stone v. Heggie and Limna v. Lang, supra.

The apjiellant complains of the action of the court in giving instruction No. 1 for the appellee. In this instruction the jury were told that the burden of proof was on the plaintiff to establish his cause by a clear preponderance of the evidence; and, unless he so established his case, the jury should find for the defendant. The complaint is directed at the word “clear.” It is insisted that this instruction required of the plaintiff a greater preponderance of the evidence than the law justified. It is argued that a clear preponderance of the evidence' is more than a preponderance of the evidence. The case of Gentry v. Railroad Co., 109 Miss. 66, 67 So. 840, is referred to as sustaining this contention. An examination of that case will demonstrate that the instruction there under consideration was very different from the one here in question. The instruction in that case held to be erroneous was in this language:

“The court instructs the jury for the defendant that if they are in doubt as to whether plaintiff was injured or not in the derailment of the train, and this doubt cannot be removed by a clear preponderance of the evidence in the case, the verdict of the jury should be, ‘We, the jury, find for the defendant.’ ”

The court said: “This instruction imposes on a plaintiff a greater burden than the law imposes on the state in a criminal trial. In a criminal trial the state must prove its case beyond all reasonable doubt. By this instruction the plaintiff must remove all doubt from the minds of the jury— and that is not all; the plaintiff must remove all doubt — £by a clear preponderance of the evidence.’ ”

In a criminal case the state is required to make out its case beyond a reasonable doubt. ' In the instruction referred to the plaintiff was required to go further and make out his case beyond any doubt by a clear preponderance of the evidence. We are unable to see that that case has any application to the instruction here complained of. In the opinion of the court the clear preponderance of the evidence means simply the preponderance of the evidence.

As we understand the record in this case the decision of these questions necessarily disposes of the other assignments of error not specifically noticed.

Affirmed