| Ga. | Dec 19, 1908
1. In an action for damages on account of an assault and battery, the defendant may give in evidence any opprobrious words or abusive language used by the plaintiff to him, in order to justify his conduct or mitigate the damages; and it is for the jury to determine, in view of the character of the provocation and the nature and extent of the battery, whether such opprobrious word's or abusive language amount to a justification or only to a mitigation of damages recoverable.
2. The reasoning of Mr. Justice Fish, now Chief Justice, as expressed in the dissenting opinion in Berkner v. Dannenberg, 116 Ga. 954, 963 (43 S.E. 463" date_filed="1903-01-10" court="Ga." case_name="Berkner v. Dannenberg">43 S. E. 463, 60 L. R. A. 559), is approved and controls the present ease. The decision made in that case, upon the point dealt with in the foregoing headnote, was not by the entire bench, but by three Justices only; and while the judgment announced by the majority of the court was controlling and could not be reviewed in the same case, and was followed in Dannenberg v. Berkner, 118 Ga. 885 (45 S.E. 682" date_filed="1903-11-03" court="Ga." case_name="Dannenberg v. Berkner">45 S. E. 682), the principle did not thereby become the adjudication of the entire bench. In connection with the dissenting opinion, in the case of Dannenberg v. Berkner, supra, see Renal Code, §103; Cross v. Carter, 100 Ga. 632 (28 S.E. 390" date_filed="1897-03-22" court="Ga." case_name="Cross v. Carter">28 S. E. 390).
3. The evidence was sufficient to support the verdict, and there was no error in overruling the motion for new trial.
Judgment affirmed.