Daily Kennebec journal., 1908-12-17

insulting language both to him and .his
wife
The verdict of the jury was for ths
plaintiff for $443.50.
The case comes before the law court
on q general motion for new trial and
exceptions to that part of the charge
of the presiding justice which related
to mitigation of damages. the language
being as follows: That if the DEFEND
ant by selling or giving to the plaintiff
Intoxicating liquors and getting him
drunk put him in a condition so that
he would he insulting or might be in
sulting, SO that in his drunken condi-
tion he would be likely to make the
talk he did make and IF the defend
ant caused the condition which made
the plaintiff talk as the defendant says
he dill, then the defendant cannot make
complaint Of the condition which he
caused himself
Exemplary damages should not be
awarded if the acts of the defendant
were not intentional, reckless, Wanton
or malicious. While insulting language
might be a DrOVOcatlOn sufficient to
Influence or occasion the conduct OF
persons OF ordinary temperament, it
would not excuse or justify an assault,
but it might be shown in mitigation of
damages.
The facts stated in the bill of excep-
tions would indicate that such a prov
ocation was not relied upon by the de-
fendant at the trial in defence or to
diminish damages, although it appears
tnat The plaintiff drank intOXicationS
liquors several times Immediately be-
fore the assault and that he used In
sulting language; but he claims that
the acts which he did caused no more
than trifiing damages, that he did not
break his Jaw but that it was the re-
suit of the plaintiffs own act.
The plainti1f does not deny that he
used toward the defendant insulting
language but claims that this did not
justify the aggravated assault by
which his jaw was broken.
The presiding justice in view of the
conflicting evidence presented to the
jury by the plaintiff and the defend
ant, giving different versions of the as
sauIt, instructed them as to the la"
applicable to the undisputed facts and
the claims made by both parties; he
correctly gave the general rule OF eN-
emplary damages he gave the correct
rule which, under the circumstances
| claimed by the defendant, would ex-
clude an award of exemplary damages
and he properly ruled that the defend
ant could not complain of what he mad
| himself caused, for example, If the N
sulting language used by the plantiH
| WAS in consequence Of his intOXlca+lon
nv LIQUORS furnished him by the de-
| fandant, he could not shield INNS II
bv such provocation in mitigation OF
damages.
The charge was not only correct but
necessary in order to cover all the
phases Of the case presented by the ev-
| idence.
To avail himself of any error IN tne
| instruct IONS of the presiding justice,
| which we fail to discover. the plaintiff
| musI show that the error was preJudl-
| cial TO him. 1t seems to US that the
damages awarded We're not excessive
for the personal injuries which the july
might be justified by the evidence III
finding the plaintiff actually received
and the pain and suffering he endured
| in consequence of the assault. ana
| that therefore there was no preludlclal
error in the charge. nor Sufilcieht
| ground for new trial.
| Exceptions oVerrWed.
| Motion overruled.