STAMPS v. POLK

Livingston Milloy, for appellant.

The evidence in this case shows conclusively that the assault and battery committed upon the plaintiff in this case was wholly unprovoked and unjustifiable, and that the verdict of the jury in favor of the defendants was clearly against the overwhelming weight of the evidence.

The court erred in permitting the defendants on the trial to introduce any evidence whatever with reference to the fight between the plaintiff and J.T. Polk several days prior to the assault and battery complained of in the declaration. The court permitted the details of this fight to go to the jury over the objection and exception of plaintiff and we submit that this evidence was wholly incompetent and was highly prejudicial to the plaintiff for many reasons.

(1) The evidence was incompetent for any purpose to show a justification of the assault and battery complained of in the declaration for the reason that the law will not indulge the frailties of humanity to such an extent as to permit a person to meditate over an injury two or three days and then jump on a person without provocation and beat him up in revenge.

(2) This evidence is prejudicial to the defendant in that the court permitted the defendant to show that J.T. Polk was a sickly man at the time the assault and battery was made upon him by the plaintiff. This was certainly highly prejudicial to the plaintiff and we cannot account for the verdict of the jury in any other way than that this first fight caused the jury to return a verdict in favor of the defendants in this case, which was contrary to the overwhelming weight of the evidence and contrary to the law.

We submit that the instruction given the jury in this case, giving the jury the right to take into consideration the fight which occurred several days prior to the assault and battery committed upon the plaintiff in this cause might be considered by the jury in mitigation of damages, was error. This instruction was highly prejudicial to the defendant and, under the law, should not have been given.

That this testimony of the witnesses was not legal and proper evidence to go to the jury in mitigation of damages is conclusively settled in Mississippi by Martin v. Minor et al., 50 Miss. 42, this case being cited by Chief Justice WHITFIELD in Ry. Co. v. Harz, 88 Miss. 681.

It is perfectly clear from the case of Martin v. Minor, supra, that under the general issue, the defendants in mitigation of damages may give in evidence a provocation by the plaintiff, provided it was so recent and immediate as to induce presumption that the violence was committed under the immediate influence of the passion thus wrongfully excited by the plaintiff. But it is conclusively held in that case that defendant cannot offer evidence in mitigation of damages under this issue with reference to a difficulty that occurred several days previous to the assault and battery sued on.

Mounger Mounger and C.E. Thompson, for appellees.

I. The question as to whether Rodney Polk provoked the assault or whether it was provoked by Clyde Stamps, whether Rodney Polk was justified in doing what he did to repel the assault of Clyde Stamps, depended upon the testimony of Miss Ida Stamps, who testified against him on one side and the testimony of himself and his father on the other, and the jury had to decide the question of his guilt or innocence upon this conflicting testimony. They decided in favor of the appellee, Rodney Polk, that he was not guilty. The record will bear us out in the contention that the jury was justified in so doing.

II. One assignment is that the court erred in permitting the appellees to introduce evidence showing the details of the fight which occurred between the appellant and the appellee, Tal Polk, several days prior to the assault and battery complained of in the declaration. Clyde Stamps, the appellant, testified that the alleged assault upon him had destroyed his memory and he claimed actual and punitive damages. The attorneys for appellees, on cross-examination of appellant, undertook to find out the nature of this alleged loss of memory, whether his memory was defective as to things which happened prior to the time of the alleged assault or whether it was confined to things which happened at the time of the assault or whether it covered the period after the alleged assault. The appellant was evasive and the examination did lead to the question as to whether he remembered things that happened the day before the assault and in turn whether he remembered what happened the day before that, and on back to the time of the difficulty between Tal Polk and himself, and he was questioned in regard to this, but not as to any details. When counsel for appellant took the appellant in hand for redirect examination they asked the appellant to tell about the difficulty which took place between Tal Polk and himself and directed him to tell what sort of difficulty it was, and caused him to relate the details so as to represent himself as being in the right and Polk as being in the wrong. This was the first time the court permitted evidence in regard to the details of that transaction. After this, when appellee, Tal Polk, was on the stand the court permitted him to give his version of the same difficulty, but this was given in contradiction of what the appellant had stated; in contradiction of matters which appellant himself had brought out at the instance of his attorneys. Afterwards the appellant put on another witness and caused him to give his version of the details of the same affair. Mr. Livingston, attorney for appellant, directed Butler to tell how the difficulty came up and caused him to give a statement as to what took place. It is our contention, therefore, that if there was error in admitting evidence as to the details of this occurrence, the appellant cannot complain because the appellant's attorneys went into the matter of their own volition. They were the first to elicit the details and they submitted the last testimony on this point.

Under these circumstances, the question having been brought into the case by the appellant, the appellees had a right to give their version of the difficulty.

III. The assignment that the court erred in giving appellees an instruction to the effect that if they, the jury, believe from the evidence that a few days before the occurrence of the matters complained of by the appellant in his declaration, the appellant made an assault upon Tal Polk, struck him in the face, and injured him about the face, then these were circumstances which might be considered by the jury in mitigation of damages, even though they might believe from the evidence that the assault complained of by the appellant was at the time unprovoked and unjustified, is without merit.

The jury was given clearly to understand that this instruction applied only in case the jury found against the appellees' assessed damages. If the jury had found in favor of the appellant and had assessed his damages at such a sum as to indicate that they had considered evidence in mitigation of damages, then there would be ground to complain. We insist, however, that it did not effect the case because the jury never reached the point where they had occasion to apply this instruction. The jury found that the appellees were not liable for any damages at all.