and the outrage and indignity which have accompanied the injury. He cannot recover his expenses in prosecuting the suit. It is the right and duty of the jury in assessing damages in an action of trespass for an assault to consider what effect the finding of trivial damages would have to encourage a disregard of the laws and disturbances of the public peace, and it is not error for the court to so instruct them.3

§ 1061. Aggravation of. In actions of assault and battery where malice and disregard of the law are present, exemplary damages are recoverable; although the defendant has been convicted and fined for the same offense." In aggravation of damages, evidence of previous threats made by the defendant in the plaintiff's presence is admissible. So is evidence of his conduct and language

at the time. And all the circumstances may be shown in aggravation of damages; and of other trespasses to his person or that of his family; and the record of defendant's conviction on his plea of guilty in a criminal prosecution. Evidence of express malice is admissible, though

not averred in the petition.5

ILLUSTRATIONS.-A pregnant woman was, without provocation, assaulted by a drunken person who threatened her with a drawn revolver, and so frightened her that she ran and fell, and three days thereafter was delivered of a dead child. Held, to be entitled to exemplary damages: Barbee v. Reese, 60 Miss. 906. The defendant broke open a house occupied by the plaintiff and his son and their families, and beat the plaintiff and his son. Held, that evidence was admissible to show that the son's wife was in travail, and that the defendant was informed thereof before he entered the house, though this matter of aggravation was not alleged in the declaration: Sampson v. Henry, 11 Pick. 379. Defendant, without provocation, assaulted plaintiff by striking him on the head with a bottle, in a public dining-room. Held, that a verdict of one thousand dollars would not be disturbed, although exemplary damages were therein included; that in such a case exemplary damages were properly recoverable, although no actual malice was shown: Borland v. Barrett, 76 Va. 128; 44 Am. Rep. 152. At the close of the trial of an action of trespass, and immediately upon the adjournment of the court thereafter, in the court-room, and in the presence of a large number of persons, one of the parties to the suit deliberately spat in the face of the other. Held, in an action brought by the injured party against the perpetrator of the act, that the case was a most fit one for the award of punitive damages: Alcorn v. Mitchell, 63 Ill. 553.

§ 1062. Mitigation of.- Provocation may be given in evidence in mitigation of damages, even though not suffi

1 Shafer v. Smith, 7 Har. & J. 67. In a woman's action for pointing a pistol at her when pregnant, held, that defendant's drunkenness was no excuse, but aggravated the assault: Reese v. Barbee, 61 Miss. 181.

Root v. Sturdivant, 70 Iowa, 55.
Shafer v. Smith, 7 Har. & J.

67.
Hamm v. Romine, 98 Ind. 77;
Green v. Bedell, 48 N. H. 546; Corwin

v. Walton, 18 Mo. 71; 59 Am. Dec. 285.

Klein v. Thompson, 19 Ohio St. 569.

Lee v. Woolsey, 19 Johns. 319; 10 Am. Dec. 230; Bartram v. Stone, 31 Conn. 159; Corcoran v. Harran, 55 Wis. 120. Defendant may show that plaintiff was a quarrelsome man, who, on another occasion, had assaulted defendant: Galbraith v. Fleming, 60 Mich. 403.

cient for justification.' But it must have been so recent and immediate as to raise the presumption that the violence done was committed under its influence.2 So evidence that on previous occasions the plaintiff had slandered and abused him is not admissible;3 nor that the day before the plaintiff accused him of theft; nor does a libel published in the morning mitigate an assault on the libeler on the afternoon of the same day. So it is not competent, as an excuse for a battery, to prove that, several days before it was committed, plaintiff had insulted defendant's wife, or threatened defendant. The question should be, not how many hours have elapsed since the provocation was given, but whether, in view of the circumstances of the case, the party who made the assault had a reasonable time to cool his blood. Words spoken cannot be considered in mitigation of actual damages; nor can a libel published by the plaintiff of the defendant be set up by way of counterclaim. But the defendant may show in mitigation of damages that he has already been convicted and fined for the same assault." Where a master in a fit of passion assaults his servant for a clear neglect of duty, the circumstances may be considered in mitigation of damages."

1 Brown v. Swineford, 44 Wis. 212; 28 Am. Rep. 582.

2 Lee v. Woolsey, 19 Johns. 319; 10 Am. Dec. 230; Jacaway v. Dula, 7 Yerg. 82; 27 Am. Dec. 492; Cushman v. Rogers, 1 Story, 91; Castner v. Sliker, 33 N. J. L. 95; Waters v. Brown, 3 A. K. Marsh. 559; Dolan v. Fagan, 63 Barb. 73; Corning v. Corning, 6 N. Y. 97; Martin v. Minor, 50 Miss. 42; Bonino v. Caledonio, 144 Mass. 299. Where an interval of two months occurred between certain declarations of the plaintiff in a suit for an assault and battery, which were offered in evidence in mitigation of damages, and the actual assault, they will be admissible, unless shown to have been communicated to the defendant only immediately before the assault: Gaithers v. Blowers, 11 Md. 536.

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3 Fullerton v. Warrick, 3 Blackf. 219; 25 Am. Dec. 99.

Jacaway v. Dula, 7 Yerg. 82; 27 Am. Dec. 492.

Keiser. Smith, 71 Ala. 481; 46 Am. Rep. 342.

6 Heiser v. Loomis, 47 Mich. 16; Thrall v. Knapp, 17 Iowa, 468.

Dolan v. Fagan, 63 Barb. 73; Stetlar v. Nellis, 60 Barb. 524; Stellar v. Nellis, 42 How. Pr. 163.

8 Scott v. Fleming, 16 Ill. App. 539. MacDougall v. Maguire, 35 Cal. 274; 95 Am. Dec. 98.

10 Phillip . Kelly, 29 Ala. 628; Smithwick v. Ward, 7 Jones, 64; 75 Am. Dec. 453; Flanagan v. Womack, 54 Tex. 45. Contra, Honaker v. Howe, 19 Gratt. 50; Reddin e. Gates, 52 Iowa, 210.

11 Ward v. Blackwood, 41 Ark. 295; 48 Am. Rep. 41.

In an action for indecent assault, evidence of plaintiff's lewdness with other men is admissible in mitigation of damages. But the defendant cannot show that from the intemperate habits of the other party the injury was more aggravated than it would have been upon a person of temperate habits; nor the bad character of the plaintiff, especially where such character had no connection with the assault. So evidence is not admissible that the plaintiff "was a lazy vagabond, who would not work if he could help it; that money could not be made out of him by legal process; that he had been indebted to the defendant a long time, and would not pay; that the defendant, on the morning of the day on which (in the evening) the assault was committed, had offered him ten dollars per hour if he would work for him in payment of said indebtedness, and he had refused to do it"; nor of the number, age, and condition of defendant's family, where the offer of the proof did not show that all the defendant's means and earnings were required to provide for their support. The facts relied on for a justification must be specially pleaded."

§ 1063. Evidence.-Remarks made during and immediately after the assault are admissible as part of the res gesta. Evidence of the pecuniary circumstances and social rank of the defendant is admissible on the question of damages. The defendant's wealth may be proved by

'Gulerette v. McKinley, 27 Hun, 320; Watry v. Ferber, 18 Wis. 500; 86 Am. Dec. 789.

2 Littlehale v. Dix, 11 Cush. 364; Wheat v. Lowe, 7 Ala. 311.

McKenzie v. Allen, 3 Strob. 546. Ward v. State, 28 Ala. 53. Schmidt v. Pfeil, 24 Wis. 452. Konigsberger v. Harvey, 12 Or. 286; Atkinson v. Harran, 68 Wis. 405. Shirley. Billings, 8 Bush, 147; 8 Am. Rep. 451; Colquitt v. State, 34 Tex. 550.

F Rowe v. Moses, 9 Rich. 423; 67 Am. Dec. 560; Johnson v. Smith, 64 Me. 553; Gaither v. Blowers, 11 Md. 536; Sloan v. Edwards, 61 Md. 89;

Harris v. Marco, 16 S. C. 575; Bell v. Morrison, 27 Miss. 68; Brown v. Evans, 8 Saw. 488; Jones v. Jones, 71 Ill. 52; Barnes v. Martin, 15 Wis. 240; 82 Am. Dec. 670; Birchard v. Booth, 4 Wis. 67; Brown v. Swineford, 44 Wis. 291; 28 Am. Rep. 582; McCarthy v. Niskern, 22 Minn. 90; Heneky v. Smith, 10 Or. 349; 45 Am. Rep. 143; Dailey v. Houston, 58 Mo. 361; Gore v. Chadwick, 6 Dana, 477. Compare Cochran v. Ammon, 16 Ill. 316; McNamara v. King, 7 Ill. 432. Contra, Taber v. Hutson, 5 Ind. 322; 61 Am. Dec. 96; Guengerech v. Smith, 34 Iowa, 348; Hare v. Marsh, 61 Wis. 435; 50 Am. Rep, 141.

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evidence of reputation.' So evidence is admissible on the part of the plaintiff that he was held and detained by the defendant; of previous threats of the defendant to make the assault; that he complained of the injury recently after it was received; of ill-will and malice on the part of the defendant; that plaintiff was correct in the assertion, in consequence of his persistence in which the assault was made by defendant, or of obviously probable effects of a battery, though not laid in the declaration, as sickness following a beating. So evidence is admissible of previous difficulties between the parties, and threats by the plaintiff; of the turbulent and quarrelsome disposition of the plaintiff, and that this was known to the defendant; that plaintiff's witness, who joined in the assault, had been. ordered by defendant not to enter the land, and that the witness, just before the assault, told a third person to wait and see some fun;10 of a permanent bodily infirmity produced or aggravated thereby, and statements made by plaintiff at various times showing his present feelings and sufferings, are admissible in evidence." Evidence of the relationship and conduct of the plaintiff toward the defendant, and of the latter's chastity and good moral character, is admissible in an action for indecent assault.12 Evidence of defendant's good character is inadmissible."