123 Iowa 92 | Iowa | 1904
Plaintiff and defendant were rival buyers of live stock at the town of Elma,' and competition between them had reached that strenuous stage where each strove to outdo the other in calling hard names and making accusations of dishonest conduct and practices. On June 15, 1901, the interchange of compliments resulted in an affray, out of which this litigation has arisen. Plaintiff alleges that defendant wrongfully assaulted him, and that within the course of a few minutes he repeated the assault, inflicting upon him more or less serious bodily injury, for which he seeks reparation in damages. The defendant denies the claim, alleges that plaintiff first assaulted him, and says that whatever force he employed on that occasion was used in self-defense only. He further, and by way of mitigation of damages, pleads that he acted under the excitement and anger produced by plaintiff’s violent and abusive language addressed to him, 'and sets up a counterclaim for damages for slander. The plaintiff denies the alleged slander, and pleads in mitigation that the words spoken by him were uttered under the provocation and excitement resulting from defendant’s assaults upon him, and without malice. As is usual in such cases, the bystanders who witnessed the altercation differ very widely in their version of the facts; but there is consider
Of the several assignments of error, only the following are urged in argument:
Y. In the eighth paragraph of the charge the court told the jury, in substance, that, if plaintiff voluntarily engaged in a fight with defendant, he cannot recover damages, unless it appeared defendant beat him excessively and unreasonably. Appellant argues that the verdict is contrary to the law of this instruction. This, in effect, is a complaint that the verdict is not warranted by the evidence, for counsel say the testimony shows beyond question that the fight was voluntary upon plaintiff’s part. In view of the recórd presented by the appellant’s own abstract, this point can scarcely be relied upon by him with much confidence. The plaintiff and several other witnesses unite in swearing that defendant was the active aggressor, and made at least two or three different assaults upon the plaintiff. On the other hand, defendant and his witnesses told a radically different story. Heading these different versions of the conflict in plain, unembellished print, it is no easy matter to say which party acted the part of lamb to the other’s wolf, but the jury has solved the doubt in plaintiff’s favor. The verdict has support in the evidence, and -we cannot disturb its finding.
The judgment below is affirmed.