#### J. H. THOMAS and Wife v. F. W. ASHCRAFT.

(Filed 3 April, 1912.)

Damages — Fright — Profane Language — Instructions—Appeal and Error.

In this action for damages alleged to have been caused to feme plaintiff, among other things, by fright from profane language used by defendant in an “angry and mad manner,” plaintiff’s request for special instructions were properly refused, as from her own testimony it appears that she was not frightened by the defendant’s manner and language.

Appeal from Allen, J., at February Term, 1911, of UsrioN.

The following issues were submitted by the Court:

1. Did the defendant assault the plaintiff, Mima Thomas, as alleged in the complaint?

3. What damage, if any, is the plaintiff entitled to recover?

The jury answered the first issue “No.”

There was a verdict and judgment for the defendant, and the plaintiff appealed.

The facts are sufficiently stated in the opinion of the Court by Mr. Justice Brown.

Bedwine & Silces for plaintiff.

Williams, Lemmond & Love, and Stacie <fi Parleer for defendant.

Beown, J.

The plaintiff requested the court to submit the following issue: “Did the defendant use profane language towards the plaintiff, Mima Thomas, and thereby frighten her, as alleged in the complaint ?”

Plaintiff further requested the court to instruct the jury, “-If the jury should find from the evidence that the defendant used *497profane, language towards tbe plaintiff, and did this in an angry and mad manner, and this conduct frightened the plaintiff, then the jury should answer the second issue ‘Yes.’ ”

His Honor refused to submit the said issue and to give the said instruction. The plaintiff excepted.

There is abundant evidence upon the part of the feme plaintiff to prove that the defendant assaulted her, all of which is flatly denied by him, and the jury have taken his version of the matter.

It is unnecessary to discuss the propriety of the second issue as tendered by the plaintiff as a matter of law, for there is no evidence whatever in the record tending to prove that Mrs. Thomas was either frightened or injured by the defendant’s “cussing.”

On the contrary, we judge from reading the evidence in this case that the feme plaintiff would be quite a match for the defendant, or any other ordinary man. She says 'that she’ has always been a stout woman, that she has.never taken but one dose of medicine in her whole life, and that she never had a doctor to attend her except at the birth of her children, and that she did all of her housework, cooking, washing, ironing, etc.

That “cuss” words were not at all unfamiliar to her, and not calculated to frighten her, is manifested by her own testimony. She says: “I have often heard my brother Josh and my other brothers- and all of my sisters curse. I have, also, heard my mother curse. It does not scare me to hear people curse. It was Mr. Ashcraft’s jumping at me that scared me so bad, and caused me to give way.”

Now, the jury have negatived the fact that Mr. Ashcraft jumped at her, for that was the sole basis of an assault. We think, under the testimony, his Honor very properly refused both the issue and the instruction.

No error.