Burke v. Melvin

Park, C. J. The question in this case arises upon the omission of the court to charge the jury, as requested by the defendant, “that long, continuous and extreme provocation given by the plaintiff should be considered in mitigation of damages.” The defendant claimed to have proved that early in the morning of the day when the assault complained of was committed, the plaintiff began to threaten, and assault him, and challenged him to fight; that the plaintiff kept this up for several hours, and up to the time of the assault complained of, and finally struck him; and that he, apprehending great and immediate bodily violence from the plaintiff, struck him in self-defence. - It appears by the motion that the evidence was claimed by the defendant to be admissible, first, in justification of the assault, on the principle of self-defence, and secondly, in mitigation of the damages, if it should fall short of establishing a full defence. It is claimed by the plaintiff that as the- notice under the plea of the general issue is confined to a proof that the assault was committed in necessary self-defence, and the evidence was offered in justification of the assault, it can not be used for the further purpose of mitigating the damages. But the evidence was admissible for that purpose under the general issue without notice, and the fact that it was used as a justification is no reason why it should not also be considered by the jury in determining the-damages. It appears by the motion that the evidence tended to prove a continuous [246] affray from early in the morning till it ended in the assault of the defendant several hours afterwards; that it was all one transaction. If such was the fact, and for the purposes of this case it must be so regarded, then clearly the jury were bound to consider the’ whole transaction in determining one or the other or botli of these questions. They could not ascertain what amount of damage the plaintiff was entitled to receive by' considering a part of the transaction. They must look at the whole of it. They must ascertain how far the plaintiff was in fault, if in fault at all, and how far the defendant, and give damages accordingly. The difference between a provoked and unprovoked assault is obvious. The' latter would deserve punishment beyond the actual, damage, while the damage in the other case would be attributable, in a great measure; to the misconduct of the plaintiff himself. We think the court should have charged the jury as requested by the defendant, and we therefore advise a new trial. In this opinion the other judges concurred.