It appeared conclusively from the evidence that Ferrell was an employee and servant of the Exposition Cotton Mills, and that his duties were to guard the door of the store or commissary of the mills and to permit no one to enter after closing hours, and that, during the time when he was on duty and engaged in guarding the door he assaulted Crawford with a heavy instrument. If this assault and battery was inflicted on Crawford in furtherance of Ferrell's duties to guard the store and prevent persons from entering, and for the purpose of preventing Crawford's entrance, Ferrell was acting for and in behalf of the Exposition Cotton Mills, and his act in assaulting the plaintiff was the act of the Exposition Cotton Mills for which it would be liable. The testimony was sufficient to authorize a finding that Ferrell, as the servant of the Exposition Cotton Mills, and in furtherance of his duty as doorkeeper of the store to prevent persons from entering it, committed an assault and battery on Crawford. If Ferrell, in assaulting Crawford, did so in furtherance of his duty as doorkeeper of the store to prevent Crawford's entering the store, and if Crawford used opprobrious words to Ferrell which precipitated the assault and battery, without which Ferrell might not have assaulted Crawford, the act of Ferrell, nevertheless could have been the act of the Exposition Cotton Mills through Ferrell as the mills' authorized servant in the discharge of his duties. It is clearly inferable from the evidence of Crawford that Ferrell assaulted him for the purpose of preventing him from entering the store which Ferrell was guarding as doorkeeper. If Crawford, *Page 144 in attempting to enter the store, exhibited a hostile and belligerent attitude towards Ferrell by the use of highly insulting and opprobrious words, an inference from the evidence is not demanded as a matter of law that if Ferrell assaulted Crawford as the result of the provocation inhering in the opprobrious and insulting words used by Crawford, Ferrell did so solely for the purpose of personal resentment to Crawford for the use of the opprobrious words; but the inference is authorized that Ferrell, in assaulting Crawford, did so in furtherance of Ferrell's duties as servant of the Exposition Cotton Mills in preventing the entrance of any one to the store, and found it necessary, and was provoked, to make the assault on Crawford by reason of Crawford's hostile and belligerent attitude in endeavoring to enter the store. It is therefore inferable that Ferrell, in the pursuit of his duty as servant of the Exposition Cotton Mills in guarding the store and preventing any one from entering, committed an assault on Crawford in furtherance of such duty by reason of the use by Crawford of insulting words.
In Bergman v. Hendrickson, 106 Wis. 434 (82 N.W. 304, 80 Am. St. R. 47), where a bartender assaulted and beat a customer who had ordered a drink and had not paid therefor, and who had used insulting language to the bartender, the court held: "In such a case the fact that the person assaulted conducted himself in an improper manner, calculated to arouse and bring on personal altercation with the bartender, and that the assault was wholly or in part the result of such misbehavior, does not relieve the employers from liability, if the bartender was acting within the scope of his duties." The court in that case approved a charge to the jury that if the bartender "was impelled to the assault, whatever words may have passed, by a purpose to enforce payment of the liquor bill that he was trying to collect, and committed the assault as incidental to such effort, the plaintiff should recover." See Limerick v. Roberts, 32 Ga. App. 755 (124 S.E. 806).
Where a person who is assaulted by a servant has directed opprobrious words to the servant because of his act in prosecuting the duties of his employment, the opprobrious words may be regarded as directed not only to the servant but to the employer. The employer, in a suit against it, by the person assaulted, may defend on any ground of justification or mitigation where such defense is permitted under the law by reason of opprobrious words used by *Page 145 the person assaulted to the person committing the assault. If Crawford used the opprobrious words to Ferrell, as contended, it is inferable from the evidence that Crawford was provoked to use such words by Ferrell's conduct in the discharge of his duties in preventing Crawford's entering the store. If such opprobrious words were directed to Ferrell as the servant of the Exposition Cotton Mills because of Ferrell's discharge of his duties as such servant while acting in the scope of his employment, the Exposition Cotton Mills, in a suit against it by the person assaulted to recover damages, could set up such opprobrious words as a defense, in the opinion of the jury, either as a justification or in mitigation of any damages which might be recoverable.
Under the law of Georgia, where an assailant defends a suit for damages for an assault and battery on the ground that the party assaulted used abusive or opprobrious words to the assailant, it is a question for the jury whether or not, irrespective of the gravity or nature of the insulting character of the words, the assailant was justified. Our Code, § 26-1409, provides that the defendant in a criminal action for assault and battery "may give in evidence to the jury any opprobrious words, or abusive language, used by the prosecutor, or person assaulted or beaten; and such words and language may or may not amount to a justification, according to the nature and extent of the battery, all of which shall be determined by the jury." It is on the basis of justification for the assault and battery committed as a result of opprobrious words applied to the assailant given by this criminal statute, that a person who has inflicted a battery on another, may, in a civil suit, defend against the battery where he, the assailant, was justified under some rule of law. The Code, § 105-601, provides: "A physical injury done to another shall give a right of action, whatever may be the intention of the actor, unless he shall be justified under some rule of law." If an assailant, in a civil suit against him for assault and battery, asserts justification on the ground that the person assaulted used opprobrious words to him, it must necessarily be a question for the jury, irrespective of the character of the opprobrious words, whether or not there was a justification. Our Supreme Court in Thompson v. Shelverton, 131 Ga. 714 (63 S.E. 220), has expressly held, in a civil case approving an elaborate opinion by Mr. Justice Fish in Berkner v.Dannenberg, *Page 146 116 Ga. 954, 963 (43 S.E. 463, 60 L.R.A. 559), as follows: "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 words or abusive language amount to a justification or only to a mitigation of damages recoverable."
It being inferable from the evidence, taken in its entirety, that Ferrell, in assaulting and beating Crawford was acting in furtherance of his duty to his employer in preventing Crawford from entering the store, and that he was provoked in making the assault by opprobrious words applied by Crawford to him, if the Exposition Cotton Mills was liable to Crawford for the assault the damages recoverable could be mitigated, in the discretion of the jury, by the opprobrious words which Crawford may have used to Ferrell. Therefore the court erred in failing to charge as requested by the defendant, as indicated in the opinion of the court by Judge Sutton, in which I have concurred.
Counsel for the Exposition Cotton Mills asserts very strenuously in his able brief and no less able argument that it appears from the evidence as a matter of law, without dispute, that Ferrell in hitting Crawford did so in resentment of a personal insult, and was not acting within the scope of his employment, and that therefore it appears as a matter of law from the undisputed evidence that the Exposition Cotton Mills is not liable. Counsel sites with seeming confidence and a great deal of plausibility certain decisions which seem to sustain his contention. Of course if it appeared as a matter of law from the evidence that the defendant was not liable to the plaintiff, the plaintiff could not recover, and there would be no evidence which would authorize the jury to find that there were mitigating circumstances which would authorize a reduction in damages. In my opinion the evidence is not conclusive as a matter of law that Ferrell, when he hit Crawford under the circumstances appearing from the evidence, went beyond the scope of his authority as servant of the Exposition Cotton Mills. Neither am I of the opinion that even if Ferrell in hitting Crawford was motivated by opprobrious words, these words in themselves *Page 147 as a matter of law establish the fact that Ferrell, in hitting Crawford, went beyond the scope of his authority as an agent or servant of the defendant.