“Freed came over about seven o’clock. I offered him a chair and told him to sit down. He said he had come to see about the screen windows. I said I was working hard this week, and Sunday I will put up the screen windows. He didn’t find any fault. He got up then and we had a little sociable talk. When he got up I said: ‘Mr. Freed, I wish you would settle with me.’ He said: ‘You son-of-a-bitch, you can sue me and get it if you can.’ I had an egg in my left*361 paw and I was eating the egg and I let it fly at him. He started to come in again, and I had an old shovel setting there that I used to clean up the yard, and he started to come in and I hit him a couple of licks in the butt with the shovel. He was outside when the egg hit him. Then he started over to his house as if he was going to get another drink of whiskey — he was drinking some — and I said: ‘Mr. Freed, I don’t want to fight anybody, I am too tired.’ After he was struck with the egg he started to his house. Then he came right back and told me to come out and fight him, and I told him: ‘No, I wasn’t able to fight anybody.’ I didn’t let him come in a second time. When he went to come in I struck him with the shovel. After he called me a son-of-a-bitch, he went out into the other room, and said: ‘I have a notion to break your neck.’ ”
CROSS-EXAMINATION.
“After I hit him with the egg, he went outdoors, and just as he was going outdoors he said he had a notion to break my neck, and then he turned around and it seems he was going to come in again, and then I got the shovel and gave him a couple of taps on the butt with it. He was just outside of the door when I hit him with the shovel, at the west end of the house. When I hit him with the shovel I was standing at the door inside. The door was open. Whether it was a screen door I couldn’t say. I am sure the door stayed open that night. He was two or three feet from me. I was standing right inside the door. He was standing facing me, and he started to go and I reached and hit him two raps on the butt with it. It was a long handled shovel. I hit Mr. Freed with the shovel just as he was starting to go away from me. I waited until he started to go away from me before I hit him. I think I hit him twice. According to his say so I tried to hit him hard. I don’t know whether I did or not. It wasn’t my purpose to hit him hard. The reason I hit him when he turned away from me was because I didn’t want to*362 hit him any place only on the butt. I didn’t want to hurt him nor I wouldn’t hurt Charlie Freed again.”
The following from the testimony of Freed will be sufficient to indicate his version of the affair:
“He had no table or chair on that side of the house. At first all he said was he asked me how long I was going to live in the house without paying rent. He said that in a good natured way. I told him I would pay it now. Then I took the cheek out of my poeketbook; the same check I had showed him two weeks before. Then he throwed an egg at me and got mad. I don’t know where he got that egg. I think he had it in his pocket. He said he wasn’t going to pay that $1.20 for the window light, it was too much. I didn’t know whether he was angry at that time. I was not. Before he threw the egg, I couldn’t say that he looked like a man that was going to fight. When he wouldn’t pay the $1.20 without another word he threw the egg at me. I took out the check and showed it to him and said ‘this is the check,’ but he wanted the $1.20 and he didn’t take the cheek. Then he threw the egg at me. What struck me was not half of a soft boiled-egg, it was a raw egg. . . . Then he took hold of his spade shortly after he threw the egg. I thought he was angry then, and I stayed right there. After he hit me with the egg, I told him if I owed you anything I am willing to pay it, and now you are taking your own law to me when you are getting after me like that, that is throwing the egg at me. I don’t know what Collins said when I said that. I thought he was angry and was taking the law into his own hands. I did not start to go to my own house before he struck me. I stayed right there. It was after he struck me that I said ‘if you want to fight we will go out in the street.’ I didn’t want to fight him on his own place there. That is all I can remember that I said in that conversation. I don’t recollect what Collins did when I spoke about going out into the street. . . . When I first stepped out of the house and Collins spoke to*363 me, I couldn’t tell whether he was angry or not. There was no sign of his being angry.”
The case has some cartoon features. Each of these parties appears to have had his own eccentricities. There is a note of complaint in the testimony of Freed because Collins made the assault without giving any sign of anger. And Collins testified: “I was not angry with Mr. Freed when I hit him. When he called me a son-of-a-biteh I got angry, I couldn’t strike him very hard with half an egg.” At one point the issues of their controversy were interrupted by another; and that was the question of where the war zone should be. Collins wanted the fight to be held in the backyard. Freed wanted it in the street in front of the house, because he did not want to fight Collins upon his own premises. This question was never settled. The evidence was sufficient to sustain a finding that Collins was the aggressor and was guilty of assault and battery. Whether it was sufficient to sustain a'contrary finding and whether the circumstances indicated should be deemed aggravating or mitigating would be more difficult questions. We need not pass upon these. The jury was evidently inclined to he charitable in judgment to both parties. As hereinafter shown, a small amount was allowed Freed as damages for the assault. As compared with the five thousand dollars claimed in the petition, the amount thus allowed by the verdict was very small. But the amount had support in the evidence. This evidence was direct that Collins was “too tired” to fight and that Freed “didn’t want to fight him on his own place there;” and that Collins did not “hit him any place only on the butt.”
Collins was the older man. But he was also the smaller and thereby had the advantage of the smaller girth. It is one of the mercies of the Almighty toward old age that He will not furnish it with heart-action and respiration sufficient to finish a fight. If these men had been fifty years younger, we might have had to deal with fatalities. As it is, they have
It was a circumstance against Collins that his attack was below the generally accepted level. Our best information, aliunde, is that the “belt” is the water-line of pugilistic standards. Hostilities delivered below such line are deemed submarine, and are not honored on the field of honor. Whether they are justified under the rules of warfare obtaining between neighbor and neighbor, or between landlord and tenant, we are not at present advised. Collins, being the shorter combatant, may have delivered the assault as high as his stature would permit.
We may safely assume that these circumstances were not overlooked by the jury. The net effect of the verdict would seem to indicate the jury view that though the assaulting maneuvers were not murderous, they ought to have .been pitched at a higher plane.
II. The errors of law assigned are all predicated upon instructions given by the court and upon requested instructions refused. These all bear upon the question of liability of the defendant to the plaintiff for the assault and are predicated upon the assumption that no recovery was allowed therefor. Before passing to the consideration of such errors, we must first ascertain from the record whether an allowance of some amount was made by the jury on the plaintiff’s cause of action. If yea, then none of the errors complained of could have been prejudicial.
The counterclaim was for two months’ rent at $15 per month and for potatoes to the value of $5. The verdict was for the defendant for $21.30. It is undisputed that the defendant was entitled to a rental of $15 per month payable in advance on the 7th day of each month. It is also undisputed