Opinion
No. 35165.
March 22, 1943.
1. ASSAULT AND BATTERY.
Mere words, however provoking or insulting, do not constitute an "assault" without actual offer of physical violence.
2. TRIAL.
In action for assault and battery, instruction that plaintiff should prevail if defendants had used physical violence against or "cussed or abused" plaintiff, was improper since it permitted verdict for actual damage without proof of assault or battery or despite fact that defendants had acted in self-defense.
3. TRIAL.
In action for assault and battery, instruction that plaintiff should prevail if defendants had used physical violence against or "cussed or abused" plaintiff, was improper, since it permitted verdict for both actual and punitive damages without proof of assault or battery or despite fact that defendants had acted in self-defense.
4. TRIAL.
In action for assault and battery where trial court gave instructions allowing plaintiff to recover without proof of assault or battery, defendants were entitled to reversal of judgment although defendants obtained instruction that jury could not return a verdict against defendants unless jury believed defendants committed physical violence upon plaintiff.
APPEAL from the circuit court of Bolivar county, HON. WILLIAM A. ALCORN, Judge.
Jno. T. Smith and W.D. Jones, both of Cleveland, for appellants.
In action for alleged assault and battery by two individuals who were president and vice-president, respectively, of corporation, and corporation itself, where it is alleged that assault and battery was committed for purpose of collecting account due corporation, an instruction which tells the jury that if they believe from a preponderance of the evidence that the individual defendants hit or choked or kicked or insulted or dragged or abused or cursed the plaintiff without legal justification that it was their sworn duty to return a general verdict for plaintiff is erroneous as ignoring defense of threatening words and attitude as justification and in mitigation of damages and as authorizing recovery if individual defendants abused or cursed the plaintiff, because action was not based on insult or slander.
Jackson v. Leggett, 186 Miss. 123, 189 So. 180; Graham v. Brummett, 182 Miss. 580, 181 So. 721; Russell v. Williams, 168 Miss. 181, 150 So. 528.
In an action for alleged assault and battery against two defendants who are president and vice-president, respectively, of corporation, and corporation itself, where the striking of plaintiff is admitted by one of individual defendants who claimed justification because of insulting words and attitude and amounting to self-defense, an instruction to the jury that if they believe "from a preponderance of the evidence in this case that the defendants herein hit, or choked, or kicked, or insulted, or dragged, or abused, or cussed the plaintiff, and that such was wilful, or wanton, or malicious, then, in addition to assessing the actual damages suffered and sustained by said plaintiff, you may award exemplary or punitive damages in such amount as you may deem just and proper, and in arriving at the amount thereof you may consider the financial worth of the defendants" is erroneous as not being predicated on liability of defendants or any facts showing liability of defendants, and is tantamount to a peremptory instruction for actual and punitive damages, because it authorized recovery, if the plaintiff was hit, which was admitted in the evidence of defendants.
Vicksburg Meridian R. Co. v. Scanlan, 63 Miss. 413; Stamps v. Polk, 143 Miss. 551, 108 So. 729; Clegg v. Johnson, 164 Miss. 198, 143 So. 848.
Dugas Shands and Palmer Lipscomb, both of Cleveland, for appellee.
As we understand the law relative to instructions, the rule is that all instructions of both parties must be construed together.
Evans Motor Freight Lines v. Fleming, 184 Miss. 808, 185 So. 821.
A new trial will not be granted because of erroneous instructions, if the verdict of the jury be plainly and clearly right, according to the law and the justice of the case.
Hale v. Hinkle Mercantile Co., 159 Miss. 796, 132 So. 751; Trolio v. Nichols, 160 Miss. 611, 133 So. 207.
See also Moore v. State, 2 So.2d 832.
We say that under Yazoo M.V.R. Co. v. Williams, 87 Miss. 344, 39 So. 489, instruction No. 3 is good. The words "insulted, abused or cussed" are synonymous as used in the instruction. The word "insulted" includes both "abused" and "cussed." We provide in the instruction that the things mentioned have to be done "without legal justification." Elmer Nowell admitted that he hit Henry. We submit earnestly that it is not probable, in view of all the facts and circumstances in this record, that this instruction misled the jury one single bit.
Appellee's instruction No. 7, when read with instructions Nos 3 and 4, is perfectly good. The first four lines of the instruction sets out what would be necessary to entitle the appellee to a verdict and then states that if the acts mentioned were wilful or wanton or malicious then plaintiff appellee would be entitled to punitive damages and states what the jury may consider, to-wit, the financial worth of the defendants. By using the words "wilful or wanton or malicious" we say that if the jury believes that the acts were unlawful or without excuse or were done without regard to the plaintiff's legal rights, then he is entitled to punitive damages. This is the law. This instruction did not, and could not, have misled the jury.
Argued orally by Jno. T. Smith, for appellants, and by Dugas Shands, for appellee.
Appellee was plaintiff and appellants were defendants in the lower court. They will be so called in this opinion.
A number of errors are assigned on this appeal, but it is necessary that we pass only upon the correctness of two challenged instructions granted the plaintiff.
This action is for damages for bodily injuries and humiliation resulting, as is claimed by plaintiff, from an unjustified personal assault and battery by defendants, with hands and feet, upon the plaintiff, aggravated and accompanied by vile and insulting language toward him.
Defendants deny the use of the language but admit an assault and battery upon plaintiff by defendant, Elmer Nowell, rightfully and necessarily made, as defendants assert, to prevent an apparently dangerous attack upon Elmer Nowell by the plaintiff by the use of a chair.
There is sufficient evidence to support either the charge of plaintiff or the pleas of defendants. The jury returned a verdict for plaintiff.
The plaintiff obtained from the court the following instructions:
"The court instructs the jury for the plaintiff that if you believe from a preponderance of the evidence in this case that Elmer J. Nowell and Jack Nowell hit, or choked, or kicked, or insulted, or dragged, or abused or cussed said plaintiff, without legal justification, then it is your sworn duty to return a verdict for the plaintiff in this case."
"The court instructs the jury on behalf of the plaintiff that if you believe from a preponderance of the evidence in this case that the defendants herein hit or choked or kicked, or insulted, or dragged, or abused, or cussed the plaintiff, and that such was wilful, or wanton, or malicious, then, in addition to assessing the actual damages suffered and sustained by the said plaintiff, you may award exemplary or punitive damages in such an amount as you may deem just and proper, and in arriving at the amount thereof you may consider the financial worth of the defendants."
Both of these instructions use the disjunctive "or." Under the first the jury could return a verdict against defendants for actual damages if it believed defendants, without legal justification, "abused or cussed" the plaintiff, even though no assault or battery was committed upon him. Likewise, under the second, it could have returned a verdict for both actual and punitive damages if the jury believed the cursing or abuse was willful and malicious. Under neither was it necessary for plaintiff to prove an assault or battery.
Mere words, however provoking or insulting, do not constitute an assault (and, of course, not an assault and battery) without actual offer of physical violence. 6 C.J.S. Assault and Battery, p. 799, sec. 5, subsec. b; 4 Am. Jur., p. 134, sec. 12.
"The great weight of authority, under the common law, is that mere words, however offensive or insulting, when the conduct of the party does not amount to an assault, are not actionable." Continental Casualty Co. v. Garrett, 173 Miss. 676, 161 So. 753, 754; Republic Iron Steel Co. v. Self, 192 Ala. 403, 68 So. 328, L.R.A. 1915F, 516. It is true in the casualty company case, supra, recovery was allowed, but upon grounds other than mere words.
Under both instructions recovery might have been had even though defendants were justified in striking the plaintiff to prevent a battery by him upon them, if at the time they "cussed" or "abused" the plaintiff, and the second failed to give defendants the right of legal justification if their acts were reasonably necessary as a defense against apparent danger at the hands of the plaintiff.
It is true the defendants obtained an instruction that the jury could not return a verdict against them unless they believed the defendants committed physical violence upon plaintiff, but this instruction was in direct conflict with the two foregoing instructions granted the plaintiff, and they cannot be reconciled. For a case not directly in point but closely analogous to this see Jackson v. Leggett, 186 Miss. 123, 189 So. 180.
There was no attempt to allege liability either for common law slander, or under our actionable word statute.
Reversed and remanded.