Hamm v. Romine

• Decision Date: 16 October 1884
• Docket Number: 11,579
• Citation: 98 Ind. 77
• Parties: Hamm et al. v. Romine et ux
• Court: Indiana Supreme Court

98 Ind. 77

Hamm et al. v. Romine et ux

No. 11,579

Supreme Court of Indiana

October 16, 1884

From the Superior Court of Allen County.

J. Q Stratton and I. Stratton, for appellants.

R. S Robertson and J. B. Harper, for appellees.

OPINION

Bicknell C. C.

The appellees recovered a judgment against the appellants for an assault and battery, with $ 500 damages.

The following errors are assigned:

1. Overruling a motion for a venire de novo.

2. Overruling a motion for a new trial.

3. Overruling a motion in arrest of judgment.

The appellees assign the following cross error, to wit: Permitting the appellants to file their bill of exceptions after the time given therefor had expired.

The record shows that sixty days time was given, within which to prepare and file the bill of exceptions, and that on the sixtieth day the bill was presented to the judge, who took time to examine it, and by his direction it was afterwards submitted for examination to the counsel for the appellees, who, in open court, suggested alterations, which were made, and the corrected bill was signed by the judge on January 11th, 1884, and was filed with the clerk on January 11th, 1884, the time originally given having expired on the 14th of September, 1883.

Under the former practice, it was necessary that a bill of exceptions should be filed within the time fixed by the court. Gaff v. Hutchinson, 38 Ind. 341; Everhart v. Hollingsworth, 19 Ind. 138; Scanlan v. Ayres, 73 Ind. 211. But the statute of 1881, R. S. 1881, section 629, provides that when the bill of exceptions is presented to the judge within the time limited, but is signed and filed afterwards, "delay of the judge in signing and filing the same shall not deprive the party objecting of the benefit thereof." The alleged cross error is not available. Creamer v. Sirp, 91 Ind. 366. But no cross error was necessary to present this question.

The complaint was in two paragraphs. The first alleged that the plaintiffs were husband and wife, and charged an assault and battery by the defendants upon the wife, "whereby she is damaged in the sum of $ 5,000.

The second paragraph also stated an assault and battery by the defendants upon the wife, giving the particulars of the injuries sustained by her, and proceeding as follows: "And causing the plaintiffs to lay out and expend large sums for care and attendance while she was disabled, * * * and also causing extra labor and work to said Perry Romine, in caring for her while so disabled, and in performing the work his co-plaintiff might and would have done and performed for their mutual benefit, but for the injury aforesaid, by reason of which the plaintiffs were damaged in the sum of $ 5,000."

There was no demurrer to this complaint, and there was no motion in reference thereto.

The defendants answered jointly by a general denial.

The jury returned the following verdict, signed by their foreman: "We, the jury, find for the plaintiffs and assess the damages in the sum of $ 500."

The defendants moved for a venire de novo, as follows: "Come now the defendants and move the court for a venire de novo in said cause for the following reasons, namely:

"1. Because the verdict of the jury is so defective that no judgment can be rendered in said cause."

The overruling of this motion is the first specification in the assignment of errors. There is no difficulty in rendering judgment on the verdict; there is nothing ambiguous, uncertain or defective in it. Therefore, there was no error in overruling the motion for a venire de novo.

The complaint was by husband and wife to recover damages for an assault and battery upon the wife. In such a case husband and wife could always join as plaintiffs, and they recovered damages jointly. Under the act of 1879, R. S. 1881, section 5131, a married woman may now sue in her own name for such an injury, and when she brings such a suit the money recovered is her separate property, and her husband is not liable for costs.

But she is not compelled to sue alone; the old rule of the common law as to the unity of husband and wife still exists, except where some statute has impaired it, and there is no statute which declares that a married woman must, in all cases, sue alone. In the civil code of 1852, the common law rule was recognized in the provision that "When a married woman is a party, her husband must be joined with her; except" that as to her separate property she may sue alone. 2 R. S. 1876, p. 36, section 8. While this law was in force, in 1861, the case of Rogers v. Smith, 17 Ind. 323, was decided, in which it was held that for torts to wives there are, as a general proposition, two actions, one by the husband for his personal losses in the way of service, expenses, etc., the other by the husband and wife for the injury to the person of the wife. In this case the court said further: "In these several suits the complaint should be framed for the particular cause of action the party has a right to sue for; but where it is drawn including both the causes of action of which we have spoken, it will be presumed, after verdict, that the proof was limited on the trial to the legitimate ground of damages. This is the common law doctrine."

In the revision of 1881, R. S. 1881, section 254, the provision of 1852, that married women must, in general, be joined with their husbands, was not re-enacted, but the effect of that change was to leave the common law rule in force, except that, in certain cases mentioned in the statute, the wife may sue alone, as she might under the act of 1852, supra, and where she sues with her husband for an injury to her person, the rules laid down in Rogers v. Smith, supra, are still in force, and if the complaint, as in that case, in addition to the personal injury to the wife, states matters of damage to the husband, in which the wife has no legal interest, and no motion is made to strike out such matters, and there is a verdict for the plaintiffs on the general denial pleaded, the presumption will be that the proof was confined to the legitimate ground of damage. The complaint in this case contains a valid cause of action in favor of husband and wife. Roller v. Blair, 96 Ind. 203. There was, therefore, no error in overruling the motion in arrest of judgment.

There were twenty-four reasons alleged for a new trial. Of these the appellants, in their brief, expressly abandon the fourth, fifth, sixth, seventh, eighth, eleventh and twelfth.

The first and second causes for a new trial allege error of the court in permitting Anna Romine to testify as to the extent of the injury created by the assault and battery. She was permitted to testify as to the immediate and permanent injuries she sustained, such as black and blue marks, loss of sleep, pain, and a cough and poor health ever since she was knocked down and beaten. The witness was not stating any matter of opinion merely; she was stating that these facts followed the assault and battery. The appellants' counsel say, in their brief, "The precise question is this, can a party sue for an injury to a limb and then prove an impairment of his general health for the purpose of increasing the measure of damages?" The answer to this is that where, as in the present case, permanent disability is alleged as the result of the assault and battery, such disability is as much a part of the injury to be compensated by damages as the immediate pain produced by the unlawful act. The objections to the admission of this testimony can not be sustained.

The third reason for a new trial is that the court admitted in evidence the docket of W. T. Watt, a justice of the peace showing the conviction of the defendant Joseph Hamm of the assault and battery charged in the complaint. There was no error in the admission of this record. It showed...