delivered the opinion of the court.

Bonham sued Tipton for assault; there was a verdict for defendant and Bonham brings error.

The defendant testified that he committed the assault, and there was neither plea nor evidence of justification or excuse; the court should, therefore, have directed a verdict for plaintiff, and left to the jury the question of damages only.

It is objected that neither the motion for new trial nor the assignment of errors covers this point, but one ground in the motion is that the verdict is contrary to' the evidence, which, in this particular case, states the exact situation. See Leadville v. McDonald, 67 Colo. 131, 135, 186 Pac. 715, and the assignment sets it forth more definitely.

The judgment is reversed and the district court directed to submit only the amount of damages to a jury and render judgment for plaintiff for such sum as they may fix.

Mr. Chiep Justice Burke, Mr. Justice Whitpord and Mr. Justice Sheapor concur.