Rarden v. Maddox

DOWDELL, J. In an action for damages for assault and battery, abusive language and epithets by the plaintiff to the defendant cannot be pleaded by the latter in justification of the assault. Such may, however, be .shown in evidence, when made at or about the time of the assault, in mitigation of the damages sought to* be recovered. The special pleas to- which demurrers were sustained set up the abusive language in justification of the alleged assault. There was no* error in sustaining the demurrers. — See Mitchell’s erne in MSS. There was no bill of exceptions reserved on the trial, and the appeal is taken on the record. By the recital in the judgment it is shown that the verdict of the jury was for the plaintiff for $20. The judgment of the court on this verdict awarded all costs against the defendant. The statute, (§ 1326 of the Code), provides that, “In all actions to recover damages for torts, the plaintiff recovers no more costs than damages, where such damages do not' exceed twenty dollars, unless the presiding judge certifies that greater damages should have been awarded; and on failure to certify, judgment must be rendered against plaintiff for such residue.” In Guttery v. Boshell, 132 Ala. 596, we said: “In the absence of express recital of thé fact in the record that the certificate of the judge was made, it cannot be presumed on error that it was made.” Citing Tecumseh I. Co. v. Magnum, 67 Ala. 247. The judgment is erroneous, and under the above authorities must be reversed and a judgment will be here rendered in conformity with the statute, as was done in the case of Guttery v. Boshell, supra. Reversed and rendered. [509] McClellan, C. J., Haralson and Denson, JJ., concurring.