Dupee v. Lentine

18 N.E. 465, 147 Mass. 580, 1888 Mass. LEXIS 166

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1888
• Status: Published

Opinion

Bv the Court.

It is the settled rule in this Commonwealth, that, in an action for an assault and battery, previous provocation is not admissible in mitigation of damages. Provocation cannot be shown, unless it is so recent and immediate as to form part of the transaction. In other words, to be admissible, it must be provocation happening at the time of the assault. Mowry v. Smith, 9 Allen, 67. Tyson v. Booth, 100 Mass. 258. Bonino v. Caledonio, 144 Mass, 299.

In the case at bar the court therefore rightly rejected the evidence offered by the defendant to show provocation by the previous act of the plaintiff in insulting the defendant’s wife. It was not a provocation occurring at the time of the assault, and formed no part of the transaction.

Exceptions overruled.