# Mitchell v. Gambill

> Supreme Court of Alabama · November 15, 1903 · 140 Ala. 316

URL: https://www.frixlaw.com/law-library/cases/6520369

## Case

- **Full name:** Mitchell v. Gambill
- **Court:** Supreme Court of Alabama
- **Decided:** November 15, 1903
- **Citations:** 140 Ala. 316
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Dowdell
- **Judges:** Dowdell
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6520369

## Opinion text

DOWDELL, J.
This is an action of trespass for assault and battery. The complaint is in Code form. The three pleas to the complaint upon which issue was taken and the cause tried, presented in different forms the general issue. Under this issue, matter in justification of the alleged assault is not competent in evidence. Such defense must be specially pleaded. —Lunsford v. Walker, 93 Ala. 36 .
Section 4345 of the Criminal Code of 1896, which provides that, “on the trial of any person for an assault, an assault and battery, or an affray, he may give in evidence any opprobrious words or abusive language used by the person assaulted or beaten at or near the time of the assault or affray; and such evidence shall be good in extenuation or justification, as the jury may determine,” has no application to civil actions for damages, and applies alone to criminal prosecutions for the offenses named in the statute. —Prior v. State, 77 Ala. 56 . Moreover, as was said in Brown v. State, 74 Ala. 42 , this statute was “intended as a shield and not as a sword,” and it cannot be invoiced by a defendant who first used, insulting words, and struck the first blow. But independ *320 ent of the statute, in a civil action for damages at the common law, while mere words, although of provocation, do not constitute a defense to the action, yet when used at the time or immediately preceding the battery, they may be shown in evidence under the general issue in mitigation of damages. —Keiser v. Smith, 71 Ala. 481 ; 46 Am. Rep. 312 , and authorities there cited.
Since the recovery in actions of this nature may include punitive or vindictive damages, as well as actual damages, the language used by the plaintiff at the time of the transaction, was competent in evidence, and it was permissible for the jury to consider it in mitigation of punitive damages, but not of any actual damages sustained by the plaintiff.
Charge seven requested by the plaintiff correctly stated the law and its refusal was error. What we have said above sufficiently expresses our views as to the rulings of the court complained of, for the purpose of another trial. For the error indicated, the judgment of the circuit court must be reversed and the cause remanded.
Reversed and remanded.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6520369. Public record. Not legal advice.