Ronan v. Williams

Miller, Ch. J. — The plaintiff’s petition alleges that on the 17th day of October, 1874, the defendant committed upon him an assault and battery, for which he claims five hundred dollars damages. The defendant answered, admitting the alleged assault and battery, and alleging that, immediately before committing the same, the plaintiff called defendant’s mother a whore and a [681] bitch, and had previously circulated a report that the defendant’s mother was a woman of bad character, and applied to her vile and opprobrious names, in the neighborhood of defendant’s residence; that such report came to the knowledge of defendant immediately previous to making the assault, and that the said assault was committed under great mental excitement. To this answer the court sustained a demurrer and this ruling is assigned as error. The ruling was right. The facts alleged constitute no defense to the action, for no words will justify an assault. 1. pleading : justification, Any facts of which evidence is legally admissible may, in eases of this kind, be pleaded to mitigate or otherwise reduce the damages. Code, section 2682. But when such facts are pleaded they must not be set up as a defense or justification, when they do not amount to that. They must be pleaded as mitigating circumstances, or as going to reduce the damages and not as a full defense. A partial defense of whatever character must be pleaded as such. The Davenport Gas L. & Coke Co. v. The City of Davenport, 15 Iowa, 6; Martin v. Swearengen, 17 Id., 346. In the case before us the answer sets up the alleged provoking language spoken by the plaintiff as a defense — as a justification for the commission of the assault. They are not pleaded in mitigation of damages as they should be. The judgment of the court below must be Affirmed.