Lizana v. Lang

Citations

• 90 Miss. 469
• 43 So. 477

Syllabus

<p>1. Assault and Battery. Civil liability. ■ Defense. Consent and Provocation. Code 1892, § 1428.</p> <p>The acceptance by defendant of plaintiff’s challenge to fight and engaging in a fight in pursuance thereof, are unlawful, and the challenge affords no defense to a civil action for an assault and battery under Code 1892, § 1428, providing that in all trials for assault and battery, the defendant may give in evidence, in excuse or justification, any insulting words used towards him at the time by the person assaulted.</p> <p>2. Same. Instruction.</p> <p>In such case, it appearing that defendant did not commit the act complained of at the time he was challenged to fight, but went one hundred and twenty-five feet, procured weapons from his' desk and returned before striking plaintiff, it was error to give defendant’s instruction to the effect that if plaintiff voluntarily entered into and provoked a quarrel with defendant, and used language inviting a fight, for the purpose of, and calculated to bring on a fight, he was not entitled to recover.</p> <p>3. Same. Excessive beating.</p> <p>In a civil action for damages, the fact that the difficulty was provoked by plaintiff, affords no justification for an excessive assault and battery.</p>