Robert J. Gladwin, Judge.
Appellee, Charles Kohler, brought this civil action in the circuit court, asking for damages against appellant, Freddie Tygart, for assault and battery committed when appellant attacked him with a baseball bat. Although appellant alleged self defense, the trial court found him to be the aggressor in the situation and awarded damages to appellee for medical bills and for pain and suffering. For reversal, appellant contends that the trial court erred in its application of the doctrine of self defense and in its calculation of damages. We affirm.
On December 5, 1999, an altercation occurred between the parties, who had been involved with the same woman for some time. Tammy Lucas was appellee’s former common-law wife in another state and had three children with him. Both men testified that Ms. Lucas had lived with each of them off and on; one characterized her as a “floater,” and the other described their relationship as “seasonal.” At the time of the altercation, Ms. Lucas was not living with either of the parties, but, according to appellant, was presently in a relationship with him.
Appellant testified that he was supposed to meet Ms. Lucas at the Spanish American Restaurant. When he arrived about thirty to forty-five minutes late, he noticed appellee’s vehicle at the restaurant. Appellant left, but returned sometime later. Upon his return, he saw appellee leaning through the window of the truck appellant had loaned to Ms. Lucas. Appellant said appellee’s head and shoulders were inside the truck. Appellant stated that he thought something might have been wrong but admitted that he did not see or hear anything that would justify this belief, other than the fact that appellee was leaning through the window. Appellant testified that he yelled at appellee, cursing him, and that when appellee turned around, he had a whisky bottle in his hand that he “raised towards” appellant. Appellant stated that he then grabbed a baseball bat from the back of his truck, approached the truck Ms. Lucas was sitting in, and struck the back of the truck with the bat as a warning to appellee. According to appellant, appellee was turned away from the door of the truck, facing appellant’s direction, and was standing near the truck where the cab joins the bed. Appellant struck appellee several times with the baseball bat, even hitting him after he had fallen to the ground.
Appellant contended that he acted in self defense and that his actions were justified because of the circumstances surrounding the encounter. He said that from the time he first became involved with Ms. Lucas in 1997, he had received numerous threats from appellee. Further, appellant stated that when he saw appellee leaning in the truck where Ms. Lucas was sitting, he decided he ought to investigate the situation because appellee had “been known to beat on her.” He admitted, however, that appel-lee was not beating or hurting anyone when he arrived. He further acknowledged that he could have called the police, but did not do so because he believed it would do no good.
Appellee testified that on the day of the altercation, he and his children had followed Ms. Lucas to the restaurant and that he had “tapped” the rear of her vehicle with his when they were waiting at a red fight. According to appellee, after he made contact with Ms. Lucas’s bumper, she leaned out her window and told him to follow her to the restaurant, where she offered to buy his dinner. He said he told her that he was not hungry but that she could take the children into the restaurant for dinner while he waited outside. He admitted to having a drink while he waited. Appellee testified that he remembered Ms. Lucas coming out of the restaurant but that he did not remember anything that occurred after that. Appellee admitted that he and appellant had exchanged numerous threats over the course of time.
Donna Green, the proprietor of the restaurant, testified that when she came out to the parking lot to leave, she saw someone leaning into Ms. Lucas’s truck, “arguing and fussing and fighting.” She saw appellant get out of his truck and hit the tailgate of the truck Ms. Lucas was in with a baseball bat. She then went inside to call the police. Ms. Green testified that her vehicle was blocked in by appellee’s van and appellant’s truck and that the incident scared her.
Sergeant Mark Willhite testified that he was dispatched to the disturbance at the Spanish American Restaurant. At the scene, Ms. Lucas was complaining about damage to the vehicles, and the sergeant noticed what appeared to be recent damage to the front of appellee’s vehicle and the back of the vehicle Ms. Lucas was driving. Appellant was not present when Sergeant Willhite arrived at the scene. The sergeant testified that appellee appeared to be intoxicated, that he was argumentative and pushy, and that he would not follow directions. Willhite said that appellee did not mention that he had been hit with a baseball bat but did say that he had been “swung at.” Sergeant Willhite took appellee to the Sheriffs Department to test his blood-alcohol content, the results of which confirmed the sergeant’s observation that appellee was intoxicated.
Appellant contends that the trial court wrongly applied an objective standard, that of a reasonable person or reasonable behavior, in determining that he did not act in self defense. Appellant argues that the trial court should have focused only on his perception of threatened force, not what a “reasonable man” might have done. We have reviewed the comments and ruling by the trial court and conclude that the law regarding self defense was correctly applied to this situation.
When a civil case is tried by a circuit court sitting without a jury, our inquiry on appeal is not whether there is substantial evidence to support the factual findings of the court, but whether the findings are clearly erroneous, or clearly against the preponderance of the evidence. Springdale Winnelson Co. v. Rakes, 337 Ark. 154, 987 S.W.2d 690 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been committed. Neal v. Matthews, 342 Ark. 566, 30 S.W.3d 92 (2000).
Our research reveals a paucity of recent case law dealing with civil battery and the use of the affirmative defense of self defense in civil cases. In Magness v. State, 67 Ark. 594, 50 S.W. 554 (1899), the-supreme court presented a thorough discussion of self defense, citing numerous authorities. In this discussion, the Magness court referred to Smith v. State, 59 Ark. 132, 26 S.W. 712 (1894), wherein the court stated that in ordinary cases of one person killing [causing physical harm to] another in self defense, it must appear that the danger was so urgent and pressing that, in order to save his own life, or to prevent his receiving great bodily injury, the killing of [physical harm caused to] the other was necessary. The court made clear that the danger must appear urgent and pressing to the person acting in self defense, not to a hypothetical reasonable man. However, to be justified in acting upon the facts as they appear to him, the actor must act with due circumspection.
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Robert J. Gladwin, Judge.
Appellee, Charles Kohler, brought this civil action in the circuit court, asking for damages against appellant, Freddie Tygart, for assault and battery committed when appellant attacked him with a baseball bat. Although appellant alleged self defense, the trial court found him to be the aggressor in the situation and awarded damages to appellee for medical bills and for pain and suffering. For reversal, appellant contends that the trial court erred in its application of the doctrine of self defense and in its calculation of damages. We affirm.
On December 5, 1999, an altercation occurred between the parties, who had been involved with the same woman for some time. Tammy Lucas was appellee’s former common-law wife in another state and had three children with him. Both men testified that Ms. Lucas had lived with each of them off and on; one characterized her as a “floater,” and the other described their relationship as “seasonal.” At the time of the altercation, Ms. Lucas was not living with either of the parties, but, according to appellant, was presently in a relationship with him.
Appellant testified that he was supposed to meet Ms. Lucas at the Spanish American Restaurant. When he arrived about thirty to forty-five minutes late, he noticed appellee’s vehicle at the restaurant. Appellant left, but returned sometime later. Upon his return, he saw appellee leaning through the window of the truck appellant had loaned to Ms. Lucas. Appellant said appellee’s head and shoulders were inside the truck. Appellant stated that he thought something might have been wrong but admitted that he did not see or hear anything that would justify this belief, other than the fact that appellee was leaning through the window. Appellant testified that he yelled at appellee, cursing him, and that when appellee turned around, he had a whisky bottle in his hand that he “raised towards” appellant. Appellant stated that he then grabbed a baseball bat from the back of his truck, approached the truck Ms. Lucas was sitting in, and struck the back of the truck with the bat as a warning to appellee. According to appellant, appellee was turned away from the door of the truck, facing appellant’s direction, and was standing near the truck where the cab joins the bed. Appellant struck appellee several times with the baseball bat, even hitting him after he had fallen to the ground.
Appellant contended that he acted in self defense and that his actions were justified because of the circumstances surrounding the encounter. He said that from the time he first became involved with Ms. Lucas in 1997, he had received numerous threats from appellee. Further, appellant stated that when he saw appellee leaning in the truck where Ms. Lucas was sitting, he decided he ought to investigate the situation because appellee had “been known to beat on her.” He admitted, however, that appel-lee was not beating or hurting anyone when he arrived. He further acknowledged that he could have called the police, but did not do so because he believed it would do no good.
Appellee testified that on the day of the altercation, he and his children had followed Ms. Lucas to the restaurant and that he had “tapped” the rear of her vehicle with his when they were waiting at a red fight. According to appellee, after he made contact with Ms. Lucas’s bumper, she leaned out her window and told him to follow her to the restaurant, where she offered to buy his dinner. He said he told her that he was not hungry but that she could take the children into the restaurant for dinner while he waited outside. He admitted to having a drink while he waited. Appellee testified that he remembered Ms. Lucas coming out of the restaurant but that he did not remember anything that occurred after that. Appellee admitted that he and appellant had exchanged numerous threats over the course of time.
Donna Green, the proprietor of the restaurant, testified that when she came out to the parking lot to leave, she saw someone leaning into Ms. Lucas’s truck, “arguing and fussing and fighting.” She saw appellant get out of his truck and hit the tailgate of the truck Ms. Lucas was in with a baseball bat. She then went inside to call the police. Ms. Green testified that her vehicle was blocked in by appellee’s van and appellant’s truck and that the incident scared her.
Sergeant Mark Willhite testified that he was dispatched to the disturbance at the Spanish American Restaurant. At the scene, Ms. Lucas was complaining about damage to the vehicles, and the sergeant noticed what appeared to be recent damage to the front of appellee’s vehicle and the back of the vehicle Ms. Lucas was driving. Appellant was not present when Sergeant Willhite arrived at the scene. The sergeant testified that appellee appeared to be intoxicated, that he was argumentative and pushy, and that he would not follow directions. Willhite said that appellee did not mention that he had been hit with a baseball bat but did say that he had been “swung at.” Sergeant Willhite took appellee to the Sheriffs Department to test his blood-alcohol content, the results of which confirmed the sergeant’s observation that appellee was intoxicated.
Appellant contends that the trial court wrongly applied an objective standard, that of a reasonable person or reasonable behavior, in determining that he did not act in self defense. Appellant argues that the trial court should have focused only on his perception of threatened force, not what a “reasonable man” might have done. We have reviewed the comments and ruling by the trial court and conclude that the law regarding self defense was correctly applied to this situation.
When a civil case is tried by a circuit court sitting without a jury, our inquiry on appeal is not whether there is substantial evidence to support the factual findings of the court, but whether the findings are clearly erroneous, or clearly against the preponderance of the evidence. Springdale Winnelson Co. v. Rakes, 337 Ark. 154, 987 S.W.2d 690 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been committed. Neal v. Matthews, 342 Ark. 566, 30 S.W.3d 92 (2000).
Our research reveals a paucity of recent case law dealing with civil battery and the use of the affirmative defense of self defense in civil cases. In Magness v. State, 67 Ark. 594, 50 S.W. 554 (1899), the-supreme court presented a thorough discussion of self defense, citing numerous authorities. In this discussion, the Magness court referred to Smith v. State, 59 Ark. 132, 26 S.W. 712 (1894), wherein the court stated that in ordinary cases of one person killing [causing physical harm to] another in self defense, it must appear that the danger was so urgent and pressing that, in order to save his own life, or to prevent his receiving great bodily injury, the killing of [physical harm caused to] the other was necessary. The court made clear that the danger must appear urgent and pressing to the person acting in self defense, not to a hypothetical reasonable man. However, to be justified in acting upon the facts as they appear to him, the actor must act with due circumspection. The Magness court noted that when a person is threatened with loss of life or great bodily injury, “he is compelled to act upon appearances, and determine from the circumstances surrounding him at the time as to the course he shall pursue to protect himself. When the danger is pressing and imminent . . . he is, from necessity, the judge of his own action.” Magness, 67 Ark. 594 at 603, 50 S.W. 554 at 557. However, the court recognized a limitation on this right to judge one’s own actions: the law imposes upon one the duty to act with due circumspection and without fault or carelessness on his part. Id.
Magness and Smith both dealt with killings rather than batteries, thus the use of the word “killing” rather than the broader term “causing physical harm to.” As the dissent observes, causing physical harm is not the same as killing. There is, however, no practical difference when applying the law regarding self defense: whether one kills another or merely batters him with a baseball bat, he must have acted with due circumspection if he is to prevail on a claim of self defense.
In order for a person’s actions to be justified as self defense, the court must find that circumstances and appearances as presented to the actor were at the time of the incident sufficient to induce in him a reasonable belief that he was in actual and imminent danger of losing his life, or suffering great bodily injury. Id. “Unless such was the case, it cannot be said that he acted without fault or carelessness, or that he was justified or excused. It is not sufficient, however, to justify or excuse the killing [physical harm], that the circumstances and appearances were sufficient to inspire the accused with such a belief; but the belief must also have been actually and in good faith entertained by him.” Id.
In Downey v. Duff, 106 Ark. 4, 5, 152 S.W. 1010, 1011 (1912), involving a suit for damages for assault and battery, the supreme court stated the well-settled rule that while the jury must view the transaction from the defendant’s standpoint, that view must be one of good faith and free from fault or carelessness on defendant’s part. “A man cannot become frenzied from any of the passions that ordinarily move men to acts of violence, and then require of the jury that they imagine their perception and judgment to be so befogged that temporarily their reasoning faculties do not control their actions.” Id. In Tankersley v. Fortner, 170 Ark. 1014, 1016, 282 S.W. 354, 355 (1926), the court noted that “if one is assaulted, he may prove the aggression of his adversary, not only in mitigation of damages, but as an absolute defense, against liability for any damage, provided he used no more force in repelling the assault than appeared to him to be reasonably necessary for that purpose. This is true in a prosecution for a violation of the law as well as in a civil suit for damages.” In Garner v. Scott, 225 Ark. 942, 286 S.W.2d 481 (1956), the court held that a jury instruction was erroneous because it permitted the defendant to be the sole judge of the method employed or the force necessary to defend himself. The court stated that the jury instruction should have read that the defendant was required tq use only such means as were necessary under the circumstances to prevent harm, or acting as a reasonably prudent person, to have tried to avoid harm to himself in some other way. Id.
After reviewing the law and the various treatises cited therein, we conclude that when determining whether an action can be justified as self defense, the fact finder must view the circumstances surrounding the accused, as they appeared to him, and then ask: (1) Did the accused believe himself to be in imminent danger? and (2) Were there circumstances that would justify such a belief in the mind of a person of ordinary firmness and reason? See Magness, supra.
There has been some concern that comments made by the trial judge indicated that he was in fact telling appellant that, because he was involved with appellee’s ex-wife, he should just expect problems of this nature and that a reasonable man in appellant’s situation should expect that he and the woman would be hunted. It appears to us that the judge was speaking of the past conduct of the parties and the circumstances that led up to the altercation. The trial judge’s comments may have been ill advised, but they were in the nature of personal observations and not a statement of the law of self defense. However inappropriate some of the comments were, they did not dictate or result in a misapplication of the law regarding self defense.
The trial judge addressed both parties in observing that their prior conduct, the numerous threats and following each other to various locations, while not right, was “pretty normal, predictable behavior,” given the fact that they were both involved with the same woman. A reading of the entirety of the judge’s comments leads us to believe that, rather than affording appellee an excuse to “hunt” appellant and Tammy Lucas, the judge was considering the totality of the circumstances as to the relationship between these parties in determining whether appellant’s conduct was justified. The dynamics of the relationships between these two men and Ms. Lucas certainly affected appellant’s perception of the circumstances that prevailed at the time of the incident.
The judge noted that Ms. Lucas had been with appellee on an off-and-on basis for a number of years and knew how to deal with him better than did appellant. He found that appellant was the aggressor in the situation and that he had “stepped in between” Ms. Lucas and appellee. Appellant’s own testimony established that appellee was not “beating or hitting” anyone when he arrived. Appellant admitted that he was already irritated about appellee “ramming” his vehicle that Ms. Lucas was driving. Both parties had been threatening each other off and on for about eighteen months. Appellee was not the one “on a hunt” here; appellant first left the restaurant when he saw that appellee was there, then he returned and chose to intervene in the encounter between appellee and Ms. Lucas. He yelled obscenities at appellee, grabbed a bat out of his truck, approached appellee, who raised a whisky bottle toward him, struck the back of the truck appellee was standing beside to “warn him,” and then struck appellee numerous times with the bat.
The judge’s comments do not suggest at all that a husband has a right to hunt down and attack his wife or ex-wife. He does not suggest that Ms. Lucas was not worthy of protection. His observations reflect the reality that there was an on-going relationship of enmity between these parties; that they had all functioned thus far without the need to batter one another; that Ms. Lucas was accustomed to dealing with both appellant and appellee and, in fact, continued through the years to have personal relationships with both; and that there was nothing about the situation on December 5, 1999, that, would justify appellant’s thinking that Ms. Lucas suddenly needed his forceful protection. Appellant interjected himself into this situation in an aggressive manner and followed through with aggressive actions.
All of these factors support the finding by the trial court that appellant was the aggressor in the situation and not entitled to a claim of self defense. We cannot say the findings of the trial court were clearly erroneous or clearly against the preponderance of the evidence.
Appellant’s second argument is that the trial court erred in its calculation of damages awarded to appellee for pain and suffering. After awarding $1,128.18 for out-of-pocket medical expenses, the trial court considered general damages for pain and suffering. The trial court first stated that four times the special damages would be appropriate. When questioned as to how he arrived at this figure, the trial judge modified the award to the sum of $5,000 for pain and suffering, plus the medical expenses. Appellant argues that the sum of $5,000 is so disproportionate to appellee’s two-week recovery time as to be unreasonable.
The amount of damages to be awarded for personal injuries rests largely in the discretion of the trial judge. See Norris v. Johnson, 214 Ark. 947, 218 S.W.2d 720 (1949). In Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983), the supreme court noted that precedents are of scant value in appeals of this kind, and that in each case we must study the proof, viewing it most favorably to the appellee, and decide the difficult question of whether the verdict is so great as to shock our conscience or to demonstrate passion or prejudice on the part of the trier of fact. After due consideration of the proof in the case before us, we cannot say that the award of damages for pain and suffering was such that it either shocked the conscience of this court or that it demonstrated passion or prejudice on the part of the trial judge.
Affirmed.
Robbins, Neal and Vaught, JJ., agree. Pittman and Baker, JJ., dissent.