Stamps v. Polk

*556 Ethridge, J., delivered the opinion of the court. Appellant was plaintiff in the court below, and sued by his father as next friend for damages for an assault upon him by appellees. It appears that on a Saturday in a store, Rodney Polk, one of the defendants, struck the plaintiff two or three blows, when they were separated by the owner of the store. It appears also that on the Thursday preceding this difficulty the plaintiff, Stamps, had struck J. T. Polk, the father of Rodney Polk, in a difficulty on the premises of J. T. Polk. Plaintiff’s version of the difficulty is that he was struck on the back of the head by some one that he did not see, that nothing was said to him, but that he was told afterwards that Rodney Polk struck him. Other witnesses for the plaintiff testified that J. T. Polk refused to interfere in the difficulty and tried to prevent the witness from interfering, and also stated that J. T. Polk subsequently stated in a drug *557 store that they had hemmed up Clyde Stamps in the store and given him a good heating. Defendants denied this statement and denied that J. T. Polk had anything at all to do with it. Rodney Polk testified that he knew of the previous difficulty, and when he saw his. father enter the store he knew Stamps was in the store, and he went in to see that Stamps did not renew the difficulty with his father; that when he entered the store they were standing glaring at éach other; that when he entered and stood by his father’s side Stamps approached him in a menacing manner with his fists drawn, but that he got in the first lick and knocked Stamps to his knees, and struck a second blow to prevent his assaulting him; that his act was in self-defense. The defendant when plaintiff was 'on the witness stand sought to test his recollection, which plaintiff stated was affected by the blow on his head, by asking about remembering transactions prior to the difficulty including one between Stamps and J. T. Polk. Otu redirect examination counsel for Stamps developed the details of the previous difficulty from Stamps’ viewpoint. When defendant went upon the stand he went into details of the previous difficulty, giving a different version from that of the plaintiff. Among other instructions the court instructed the jury for the defendant that they could consider the evidence of the former difficulty for the purpose of mitigating damages although the jury might believe that Rodney Polk was the aggressor in the difficulty. Plaintiff objected to defendants’ version of the details and also to this instruction. The jury found a verdict for the defendants. The instructions for the plaintiff were elaborate, and fully covered the law applicable to the case from the plaintiff’s viewpoint. It is earnestly insisted that the instruction that the jury might consider a previous difficulty in mitigation of damages was erroneous. The ease of Martin v. Minor, 50 Miss. 42, cited for the purpose of showing that this *558 court is aligned with those authorities which hold that the details of a difficulty when separated by sufficient time for reflection are not admissible for mitigation of damages, and this case holds to this effect. However, in this case the jury found a verdict for the defendant, and the question herein presented does not arise because of the finding for the defendants on the question of liability. We think this is a case where the jury could have found either way on the facts, there being such a conflict as would enable them to take either view according as they believed the evidence for one side or the other. If Rodney Polk’s testimony was true he had a right to anticipate his adversary’s attack. The judgment of the court will therefore be affirmed.' Affirmed.