Thе action is one of trespass for an assault and battery committed on the appellant, Keiser, by the ap-pellee. The defendant, under the plea of the general issue, offered in evidence, to mitigаte damages, certain libellous articles published by the plaintiff in a newspaper called the Ope-lika Times, and defamatory of one D. B. Smith, a brother of the defendant. The two brothers, accompanied by one Dow-dеll, went to the office of the plaintiff, and, after making an ineffectual demand of retraction, severely beat the plaintiff. The court admitted the libellous articles, published in the forenoon of the same day the assault and battery was committed,
The question presented is one which has not been before decided by this court, and we fully appreciate its importance as affecting most seriously the peace and good order of society.
We are cleаrly of the opinion that the court erred in admitting this evidence. If the libels had been written of the defendant himself, instead, of his brother, or if the brother had been sued with him in this action as a co-trespasser, they would not have been legal evidence, either as justification, or in mitigation of damages.
The rule is stated by Mr. Greenleaf as follows: “ Under the general issue, the defendant, in mitigation of damages, may give in evidence a provocation by the plaintiff, provided it was so recent and immediate as to induce a presumption that the violence was committed under the immediate influence of the passion thus wrongfully excited by the plaintiff.”— 2 Greenl. Ev. § 93.
“No words of provocation will constitute a defense,” says Mr. Field in his work оn Damages, “though they may be grounds for the reduction of damages. The question on this point,” he observes, “generally is, whether the blood had time to cool, and whether the provocation and assault formed pcurts of one transaction.”—Field on Dam. p. 475, § 604.
Mr. Sedgwick says: “ The defendant can not give in evidence, in mitigation of damages, the acts or deсlarations of the plaintiff, at a different tí/me, or any antecedent facts, which are not fairly to be considered as part of one and the same transaction, though they may have been ever so irritating or pro-voicing.”—2 Sedg. Dam. (7th Ed.) 525 [547], p. 524, note. So it is said by Mr. Waterman, that such matters of provocation, in order to be admissible, must have “ immediately precеded the battery, and naturally have provoked it.”—1 Waterman on Trespass, § 266.
Mr. Sutherland states the principle in substance the same as the above mentioned authors, and remarks that “the law mercifully makes this concession to the weakness and infirmities of human nature, which subject it to uncontrollable influences when under great and maddening excitement, superinduced by insults and.threats.” “ The mitigating effect of the provocation,” he justly adds, “ is spеnt when there has been Urns for reflection, and for the passion excited by it to cool.”—1 Sutherland on Damages, 227-8.
/' These views are, in our judgment, fully sustained by the uniform current of decisions in this country for the past three-quarters of a century.
In the case of Avery v. Ray,
The case of Lee v. Woolsey,
In Willis v. Forrest,
In Ireland v. Elliott,
This case was followed in Thrall v. Knapp,
In Collins v. Todd,
The whole theory of the mitigation of damages in such cases was said, in a very early decision, to be based upon the respect entertained by the law to the frailty of human passions, which looks with an eye of some indulgence upon the violation of good order produced in the moment of irritation and excitement from abusive language. — Rochester v. Anderson, 1 Bibb (Ky.), 428. It was said by Boyle, J., in this case, in language recognized as expressing the logic of the law: “If opprobiouswords, for which the law allows an action, have been used of a man, the law furnishes a remedy, and will not permit him to redress his owm wrong. If they are so frivolous аs not to be deemed by the law actionable, a peaceful citizen, when he has had time for reflection, will consult the peace and good order of society, as well as his own dignity, in disregarding them.”
I can find but onе adjudged case contrary to these views, and that was a nisiprius ruling made by Lord Abinger, in Fraser v. Berkeley, 7. C. & P. 621, decided in 1836. The defendant "there had assaulted and beat the plaintiff, who was then the publisher of Frazer's Magazine, because of a libel published by "the plaintiff two or three days previously, defaming the defendant and his family. This libel was admitted in mitigation of damages, in entire disregard, as we think, of sound reason and the wise policy of the law. I am aware of no case in England or America where it has been since approved.
The only proper test, at least in cases where .the provocation and assault do not form parts of one continued transaction is, whether “ the Mood had ivme to cool." The criterion is not alone how many days or even hours had elapsed since the provоcation was given, although this consideration is of vast signiflcancy in ascertaining the main inquiry.—Dolan v. Fagan, 63 Barb. (N. Y.) 73; 1 Water. Tresp. § 268; 1 Hilliard on Torts (4th Ed.), 197, note (b).
What constitutes a sufficiency of cooling time, or of provocation, is necessarily a questiоn of law, and not of fact, the court
It is manifеst that no absolute rule for all possible cases can be declared. The time in which a man of ordinary prudence would cool, under a similar state of circumstances, is usually designated as a reasonablе time for such purpose. The law can not preserve its own integrity, and at the same time admit the proposition, sometimes sanctioned by a sentiment originating in too tender regard for human frailty, that calm reflection on legal wrongs may justly increase one’s rage in proportion to the length of time spent in their contemplation. The recognition, of sueh a principle wo uld speedily midermine, and ultimately destroy that peace of society, which is absolutely essential to the very existence of good government.
It has been said by high and ancient authority,. “ If two men fall out in the morning, and meet and fight in the afternoon, and one of them is slain, this is murder, for there was time to allay the heat, and their after-meeting is of malice.”—Rex v. Legg, L Kel. 27; 2 Bish. on Cr. Law, § 712; 1 Hawk. P. C. 190, § 22. One hour has been adjudged, in one case, to be a sufficient cooling time, and three hours in another.—2 Bish. on Cr. Law, § 712; Johnson's case,
There is no difficulty whatever about the application of these principles to the present case. The libellous articles appeared in the Opelilta Times, which was issued on the morning of the-day of the assault. ' The defendant read them in the forenoon, or about midday of the same day, and conversed with his brother, D. B. Smith, about it an hour or more prior to the difficulty, which occurred between three and four o’clock of the same aftеrnoon. The conduct of the brother seems to have been characterized by both plan and deliberation. He read the articles several hours before the assault, after which he seems to have attеnded to business about his store, besides going to a bank in another part of the city. He then went home and took his dinner, came back to the store, and armed himself with a pistol and stick. He then, in company with the defendant and one Dowdell, went in search of plaintiff at his place of business, where by co-operation of the three, the plaintiff was assaulted and beat very violently. The facts evince great pre
The court erred in admitting the libels in evidence, and in many of its rulings in reference to their legal effect, and its judgment must be reversed, and the cause remanded for a new trial.