Assault and Battery—Action for Damages—Evidence—Prior Agreement Relating to Disputed Item; of Account.—In an action for damages for assault and battery, where it appears that the assault was occasioned by a controversy about a disputed item of an account be. tween the plaintiff and defendant, evidence of an agreement made long prior to the assault, which involved the merits of the disputed item, is not relevant, and its admission by the court is error.

Id.—Exemplary Damages—Erroneous Instruction.—An instruction in an action for damages for assault and battery that, "if defendant wrongfully used force and violence upon the person of plaintiff in a malicious manner, that is, in a manner that showed he intended to vex, injure, or annoy him,” then the jury, “in fixing the damages, should not he confined to the actual damage sustained, ” but might give exemplary damages in addition thereto, is erroneous, as stating in effect that if a battery was committed at all, the jury should award punitory damages, regardless of any malicious intent in the mind of the defendant.

Id.—Rule as to Exemplary Damages—Question of Fact—Malicious Intent—Provocation—Extent of Force.—Upon the facts here appearing the court should have instructed the jury that the presence or absence of a malicious intent in the mind of the defendant was a question of fact to be determined by them from the evidence; that they might allow punitive damages if they believed from the evidence that such intent existed; but that, if the battery was the consequence of a sudden heat resulting from provocation first offered by the plaintiff, and not of a design for his injury deliberately formed by the defendant, and that the force used was not so disproportionate to the provocation as to repel the inference that it was induced thereby, then no exemplary damages should be included in their verdict.