The first specification alleges that the court below erred in the answer to the defendant’s first point. The learned judge affirmed the point as a matter of law. He qualified this affirmance, however, by saying that “ if the facts be as Mr. Rodgers, the defendant, testifies to, there was nothing in the attitude of Mr. Rhodes to justify any belief or reasonable apprehension that ho, Rodgers, was about to be attacked when he, Rodgers, struck him.”
*638We think this qualification of the answer to the point was entirely justified by the evidence. It is true, one or two-of the defendant’s witnesses made a stronger case for him than he did for himself. His justification for the attack upon the plaintiff, if there be any, must rest upon the state of facts as they appeared to the mind of the defendant when the blow-was struck. According to his own statement he did not look around at the plaintiff until he looked or turned to strike him. Pie does not testify to any movement or act on the part of the plaintiff, showing an intention to attack him, and the language of the plaintiff, as testified to by the defendant, would not justify the assault. Looking at the whole evidence in the case the conduct of the defendant appears to be without justification. The plaintiff testified, and in this he was not contradicted, that at the time he was struck he was walking by the side of the defendant with his hands in his pockets, and his overcoat on.
The defendant’s seventh point called upon the court to instruct the jury that in view of the fact that the defendant has been judicially convicted and sentenced for the assault and battery, which constitutes the foundation of the action, the jury should not allow anything in the way of punitive damages.
In Cornelius v. Hambay, a case from the western district, decided in July last, at Philadelphia, [reported in 150 Pa. 359,] we said that we did not care to enter upon the vexed question of punitive damages. They were allowed in that case, as they have been in. numerous other cases in this state. In Nagle v. Mullison, 34 Pa., at page 53, it was said by this court: “ In every case of oppression, outrage, and vindictiveness on part of the trespasser, the damages may be estimated and given in a punitive shape, rather than merely as compensatory.” This is the law of this state as it has been administered time out of mind by this court. The fact that the plaintiff has been prosecuted and convicted and subjected to a fine of five dollars and the costs of prosecution, does not alter the rule. The learned judge below submitted this matter to the jury in mitigation of damages, which would seem to be the proper practice: Porter v. Seiler, 23 Pa. 424.
The remaining specifications do not require discussion.
Judgment affirmed.