Thomas v. Carter , 148 Miss. 637 ( 1927 )

^* Corpus Juris-Cyc. References: Assault and Battery, 5CJ, p. 644, n. 68; p. 689, n. 23. Appellant sued the appellee for damages for assault and battery committed on her by appellee. There was a verdict and judgment for the appellee, from which judgment the appellant prosecutes this appeal. The assault and battery for which the appellant sued was committed on her by the appellee with his hands and fists.

The only question argued is whether or not the court erred in giving the following instruction:

"The court instructs the jury for the defendant, George Carter, that if you believe from a preponderance of the testimony in the case that the slapping or striking of the plaintiff by the defendant, George Carter, was provoked by the plaintiff calling George Carter `a damn son of a bitch,' then the jury has the right to determine whether the calling of George D. Carter `a damn son of a bitch' was a sufficient excuse or justification for the striking or slapping of the plaintiff by George Carter, and if the jury, from the preponderance of the testimony, believe that the calling of George Carter `a damn son of a bitch' by plaintiff was a sufficient excuse or justification for striking or slapping plaintiff, then their verdict will be, `We, the jury, find for the defendant.'"

The action of the court in giving this instruction was authorized by the decision of this court in Choate v. Pierce,126 Miss. 209, 88 So. 627.

Appellant's main reliance for reversal is Coleman v. Y. M.V.R. Co., 90 Miss. 629, 43 So. 473. It is argued that the Coleman case is decisive of this question in favor of appellant's contention. We do not think so. There is no conflict between the Choate case, and the Coleman case. The assault and battery in the Coleman case, provoked by insulting words, was committed with a deadly weapon, a pistol. The court held that insulting words were no justification for an assault and battery with a deadly weapon. That is not the case here. This was assault and battery with hands and fists.

Affirmed.