Robertson v. Sisk

Smith, J., (after stating the facts). (1) We think the court committed no error in permitting the introduction of evidence tending to contradict appellant about the character and extent of Ms injuries and ailments and the length of time he had suffered.from them. Appellant was undertaking to show that these ailments resulted from the assault of appellee and was asking compensation on that account, and it was, therefore, proper for appellee to offer evidence tending to show that appellant suffered from these troubles prior to the difficulty. (2) We tMnk the instruction 1-A, requested by appellant, should have been given, and that the instruction numbered .5, given at the request of appellee, should have been refused. The appellee offered no evidence tending to wholly justify himself in striking appellant. Appellee does testify that appellant disputed his word and inferentially accused him of having to'ld a lie, and he also testified that appellant shook his finger at him angrily, but he offered mo evidence tending to show that appellant was about to assault Mm and that it was necessary, or appeared to be necessary, for appellee to strike appellant to protect Mmself from bodily harm. Appellee did testify that he struck appellant to prevent being assaulted, but it is clear from appellee’s own .statement that he was really under no such apprehension and that no attempt was being made on appellant’s part to assault him. We think the fifth instruction was wrong, because it told the jury that, before they would be authorized in returning a verdict for the appellant in any amount, they were required to find, by a preponderance of the evidence, that the injuries alleged were the direct result of, and were occasioned solely by, the blows inflicted by the defendant. It is undisputed that appellant was twice knocked down, and bled profusely, but this instruction told the jury that no compensation could be awarded for that fact unless the injuries and ailments of wMch appellant complained were occasioned thereby. It is undisputed that appellant’s eye was badly bruised as the result of one of appellee’s blows, and, although it may be true that none of the serious ailments of which appellant complained resulted therefrom, it does not follow on that account that no damages could be awarded. The jury should have been told to return a verdict for appellant in some sum, and, in addition, should have been given the instructions which were given on the question of compensatory and punitive damages. The question of whether appellant should have recovered anytMng for punitive damages was, of course, one for the determination of the jury, as was also the question of the amount of compensatory damages, if the jury found that appellant was entitled to anything more than nominal damages. But, certainly, a man can not knock another man down, except to defend himself from bodily harm, without being liable for d'amages. (3-4) The question of the burden of proof as to the justification for the assault was also raised at the trial. And upon that question we think the law is that, it having been shown that appellee assaulted and beat the appellant, the burden was upon appellee to show that he was justified in his action. Presumptively no man has the right to inflict an act of physical violence upon another, and where it is shown that he has done so, the burden is upon him to excuse his act in so doing, unless the evidence which shows the commission of the assault also shows facts which justify it. For the error indicated the judgment will be reversed and the cause remanded.