Bangert v. Hubbard, 18600

• Citation: 127 Ind.App. 579,126 N.E.2d 778
• Decision Date: 27 May 1955
• Docket Number: No. 18600,18600
• Parties: , 67 A.L.R.2d 395 Harry P. BANGERT, Appellant, v. Carl E. HUBBARD, Appellee.
• Court: Court of Appeals of Indiana

Page 778

126 N.E.2d 778

127 Ind.App. 579, 67 A.L.R.2d 395

Harry P. BANGERT, Appellant, v. Carl E. HUBBARD, Appellee.

No. 18600.

Appellate Court of Indiana, In Banc.

May 27, 1955.

Charles V. Livengood, Richmond, Bowen, Mendenhall & Hunter, Winchester, Hollowell & Hamill, Indianapolis (Robert Hollowell, Indianapolis, of counsel), for appellant.

Dennis & Dennis, Richmond, Meeks Cockerill, Winchester, for appellee.

KENDALL, Judge.

Appellee brought suit in the lower court in two paragraphs against appellant. First paragraph sought damages for alleged assault and battery; the second sought damages for malicious prosecution.

The first paragraph alleged that the appellant 'unlawfully' touched, beat, struck and wounded the appellee by 'unlawfully' and purposely shooting him with a .32 caliber revolver.

The second paragraph alleged that the appellant, acting maliciously and without probable cause, caused appellee to be arrested on a charge of blackmail which was later dismissed by the Prosecuting Attorney, the appellee claiming that he was guiltless of the charge.

Cause was put at issue by the filing of appropriate answers by appellant.

The issues were submitted to a jury resulting in a verdict for appellee in the sum of $4,500 on the first paragraph of complaint and $10,500 on the second paragraph of complaint upon which judgment was rendered by the trial court for $15,000.

The motion for new trial filed contained numerous specifications. The specific specifications necessary for a determination in this appeal are as follows:

(a) That the damages assessed by the jury are excessive and there was error in the assessment of damages in that said assessment was too large;

(b) Verdict of the jury is contrary to law and not sustained by sufficient evidence;

(c) Error of law occurring at the trial in that: that the court erred in refusing to give to the jury defendant's requested instructions numbers one, two, three and four, which tendered refused instructions dealt with the element of self-defense.

The other specifications in appellant's motion for new trial deal with alleged errors of the court in rulings upon introduction of evidence. In view of the conclusion reached, we deem it unnecessary to discuss those alleged errors.

The Assignment of Errors are:

The trial court erred in overruling appellant's motion to strike out parts of appellee's complaint;

The trial court erred in overruling appellant's motion to require appellee to make his complaint more specific;

The trial court erred in sustaining appellee's motion to require appellant to answer questions propounded on conditional examination of appellant;

The trial court erred in overruling appellant's motion for new trial.

The evidence reveals that the appellee and his then wife (now divorced) lived on appellant's farm in Union County; that the appellee was employed in a factory at Richmond and likewise did farming for appellant; that appellant's wife advised appellee that her husband was associating with his wife; that thereafter, appellee discussed this subject with appellant who denied it; that appellant called at appellee's home on appellant's farm when the appellee happened to be there resulting in an exchange of words and particularly as to whether or not appellant had lied to appellee in denying his association with appellee's wife. There was evidence that at the time of this call that the appellee told appellant he had to be paid $10,000 by 4:00 p. m. or that he (appellee) would kill the appellant. This was denied by appellee. who testified in substance that he said that he would sue the appellant for $10,000 for associating with his wife. Evidence revealed that subsequently appellee consulted counsel and was advised that he could no longer bring suit for alienation of affections. Thereafter, appellee, while driving his automobile on a street in Richmond, saw appellant entering a storeroom whereupon he immediately stopped, parked his car, got out and called for the appellant. Words were exchanged, whereupon appellee struck appellant on the face, knocking him down and for a distance of eight feet; a scuffle followed during which time appellee noticed a gun in appellant's hand, which gun was fired, the bullet going through appellant's leg and into appellee's abdomen. Thereafter, appellant was arrested and subsequently entered a plea of guilty to assault and battery and paid a fine. The appellant had appellee arrested on a charge of blackmail growing out of the conversation in appellee's home where there was testimony in reference to a demand of $10,000. The charge of blackmail was later dismissed which was the basis for the suit on the second paragraph for malicious prosecution. The appellee testified that he was looking for the appellant and that he struck the first blow. Appellant contends that the evidence even more favorable to the appellee shows that appellant acted in self-defense, and, therefore, was entitled to have the jury instructed on that issue, for which he tendered four instructions which were refused by the trial court. Appellee does not argue that the instructions did not correctly state the law as relating to the element of self-defense but contends that the instructions were properly refused since appellant failed to plead specially self-defense. No such answer was filed by appellant. With appellant's contention on this particular point, the court agrees. The rule in this state and other jurisdictions is that if a defendant in a civil action desires to rely upon self-defense for damages growing out of assault or assault and battery, he must raise that issue by special answer and further that self-defense is not and cannot be in issue under an answer of general denial. Myers v. Moore, 1891, 3 Ind.App. 226, 28 N.E. 724; Norris v. Casel, 1883, 90 Ind. 143; 4 Am.Jur., Assault and Battery, § 143, p. 194.

In regard to this issue, in the case of Pendleton v. Norfolk & W. Railway Co., 1918 82 W.Va. 270, 95 S.E. 941, 942, 16 A.L.R. 761, 766, in deciding whether or not self-defense had to be specially pleaded, the court said:

'It is contended that there was no plea filed which would allow evidence to be introduced tending to show that the conductor acted in self-defense, or justifying the instructions which the court gave upon this theory of the case. It does not appear from the record that any such plea of justification is filed, and it seems to be very well established that in a civil action for assault and battery, in order for the defendant to justify upon the ground of self-defense, the same must [our emphasis] be specically pleaded.'

Appellant contends that since appellee used the word 'unlawfully' in the complaint describing the assault and battery that the general denial put self-defense in issue. In view of the decisions of this state and other jurisdictions on the same question, such attempted distinction is not sound and is without merit.

Specifications three and four of new trial motion contend that the verdict of the jury is not sustained by sufficient evidence and is contrary to law. In addition to the evidence already summarized, there was additional evidence that the appellant, following his meeting with appellee on October 23, 1950, was, a week later, appointed a deputy sheriff so that he might carry a gun. He admitted that he did not give the sheriff the correct reason for his desire to carry a gun with which gun he was armed on the morning of the fight of November 25, 1950. There is sufficient evidence of probative value showing that immediately after appellee hit appellant and knocked him down that appellant drew his gun and that it went off, striking appellee while appellant lay on the ground; that appellee made an effort to hold appellant's wrist and to prevent a second shot. The appellee testified that while the fight was going on, appellant threatened twice to kill him. A detective testified that appellant stated that he (appellant) aimed at the appellee and fired the gun. There was evidence that the man on his back (Bangert) had the gun in his hand and that when Bangert asked for help in getting appellee off of him, he was told to get rid of the gun and he would get help. There was not any evidence that the appellee ever had hold of the gun. There was additional evidence that appellant was questioned after the altercation as to what it was all about and that appellant replied in substance that it had been going on for a long time and that he got him first. A disinterested witness testified that Hubbard was on top and 'was trying to prevent him from holding the gun'

The evidence submitted to the jury on this issue was sufficient if believed by them to...