#### George Lowery, Appellee, v. Mack Ashton, Appellant.

(Wot to be reported in full.)

Appeal frojn the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the April term, 1916.

Reversed and remanded.

Opinion filed October 13, 1916.

Rehearing denied December 2, 1916.

Statement of the Case.

Action of trespass for assault and battery by George Lowery, plaintiff, against, Mack Ashton, defendant. *537From a judgment for plaintiff for $1,000, defendant appeals.

Herrick & Herrick, Carl N. Weilipp and Redmon, Hogan & Redmon, for appellant.

Whitley & Fitzgerald, for appellee.

Abstract of the Decision.

1. Assault and battery, § 17 * —when instruction is improper as assuming facts and, as setting forth incorrect rule of damages. In an action for damages for assault and battery, an instruction reading “you have a right to take into consideration his health prior to the assault complained of and his health since such assault, if shown by the evidence,' and allow him such sum as you may believe from the evidence will compensate him for any such injuries * * *,” held erroneous, as it assumed that the assault was made and that the plaintiff was damaged, and authorized the jury to estimate the damages in the light of a comparison of his health before and after the assault, regardless of whether the change in health was due to the assault or not.

2. Assault and battery, § 19*—when instruction is erroneous as assuming facts. In an action for damages for assault and battery, an instruction to the jury that they “may take into consideration that the plaintiff was again struck by the defendant while he, the defendant, was not acting in self-defense,” held erroneous, as it assumed the fact to be that the defendant again struck the plaintiff, and that he did so when he was not acting in self-defense.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Graves

delivered the opinion of the court.