Hooper v. Preuss

• Decision Date: 14 November 1941
• Docket Number: 16534.
• Citation: 37 N.E.2d 687,109 Ind.App. 638
• Parties: HOOPER v. PREUSS.
• Court: Indiana Appellate Court

37 N.E.2d 687

109 Ind.App. 638

HOOPER v. PREUSS.

No. 16534.

Appellate Court of Indiana, in Banc.

November 14, 1941

Sheehan & Lyddick and Alex Pendleton, all of Gary, for appellant.

H J. Douthett and J. M. Stinson, both of Hammond, for appellee.

FLANAGAN Judge.

This action was brought by appellee, George Preuss, against the appellant, Asa Hooper, for damages by reason of medical expense and the loss of the services and society of his wife resulting from an assault and battery upon her by appellant.

The verdict of the jury was for appellee in the sum of $2,875. Upon the filing by appellee of a remittitur in the sum of $1875 the court entered judgment on the verdict in the sum of $1,000.

The sole error assigned is the overruling of appellant's motion for a new trial. Its grounds are, (1) excessive damages; (2) the verdict is not sustained by sufficient evidence; (3) the verdict is contrary to law; (4) error in the giving and refusal of certain instructions; and (5) error in admission and rejection of certain evidence.

The only proposition presented under the first three assignments of the motion is that there was no evidence on which the jury could have based the amount of its verdict.

There is evidence to the effect that appellee's wife as a result of the assault and battery suffered injuries to her head, including a contusion and a concussion which caused her to be confined in a hospital for nine days, and caused her headaches which continued from the time of the injury up to the time of trial, a period of over six years, so as to prevent her from performing her usual domestic duties, and to deprive appellee of her association and society. Medical and hospital expense of $237.30 was incurred. The above seems to us ample evidence to support a verdict of $1,000, the amount after the remittitur was filed.

Appellant contends that appellee is not entitled to recover the medical expense because the doctor testified that he made the charge against the wife. There is no merit in such contention. There is no evidence that the wife agreed to accept the liability and the husband is therefore entitled to recover for it. Reinhardt v. Friederich, 1914, 58 Ind.App. 421, 108 N.E. 258; Indiana Union Traction Co. v. McKinney, 1906, 39 Ind.App. 86, 78 N.E. 203; Board of Commissioners, etc., v. Castetter, 1893, 7 Ind.App. 309, 33 N.E. 986, 34 N.E. 687; City of Columbus v. Strassner, 1894, 138 Ind. 301, 34 N.E. 5, 37 N.E. 719.

Appellant also insists that there is no evidence of the value of the wife's services and society and therefore the jury could not fix the amount of damage for such loss. Such evidence is not necessary. As our Supreme Court said in the case of Indianapolis Traction & Terminal Co. v. Menze, 1909, 173 Ind. 31, 88 N.E. 929, 930, 89 N.E. 370: "The damages from the loss of the services, society, and companionship of a wife is not in its nature susceptible of direct proof, but when the facts are shown, the assessment of compensation must be committed to the sound discretion and judgment of the trial court or jury."

Appellant also contends that since the complaint contains no averments as to any loss after the time of the filing of the complaint, evidence as to any such loss was not competent for the jury's consideration. Appellant has failed to point out wherein he made timely objection when such evidence was offered and we must therefore consider the complaint amended to conform to the proof. Section 2-3231, Burns' Indiana Statutes Annotated 1933, Baldwin's Indiana Statutes Annotated 1934, Section 505.

Appellant next complains of the refusal of certain instructions tendered by him. Where error is so predicated appellant must set out all the instructions given at the trial. Wood v. Chicago & Erie Railroad Co., 1938, 215 Ind. 467, 18 N.E.2d 772, 20 N.E.2d 642; Maxey v. State, 1938, 214 Ind. 623, 16 N.E.2d 880. This he has failed to do and therefore has presented no questions as to such instructions.

Appellant also complains of instructions numbered 6, 18 and 19 given by the court of its own motion. Instruction numbered 6 is as follows: "If you believe from the evidence that any witness in this case has knowingly and wilfully sworn falsely to any matter material to the issue in this case, then you are at liberty to disregard the entire testimony of such witness, except as it has been...