Mangold v. oft

• Decision Date: 18 December 1901
• Docket Number: 10,706
• Citation: 88 N.W. 507,63 Neb. 397
• Parties: PETER MANGOLD v. CLAUS OFT
• Court: Nebraska Supreme Court

88 N.W. 507

63 Neb. 397

PETER MANGOLD v. CLAUS OFT

No. 10,706

Supreme Court of Nebraska

December 18, 1901

ERROR from the district court for Douglas county. Tried below before KEYSOR, J. Affirmed.

AFFIRMED.

J. J O'Connor, for plaintiff in error.

Albert S. Ritchie and Carl E. Herring, contra.

ALBERT C. DUFFIE and AMES, CC. concur.

OPINION

ALBERT, C.

This action was brought by Claus Oft against Peter Mangold to recover for an assault and battery alleged to have been committed on the former by the latter. The jury found for the plaintiff, and the court rendered a judgment accordingly. The defendant brings the record here for review on error.

A considerable portion of the defendant's brief is devoted to discussion of alleged errors of the trial court in excluding evidence tending to show a justification of the assault. In our opinion, such evidence was properly excluded. The petition, so far as is material at present, is as follows: "That on the 8th day of October, 1897, the defendant assaulted and beat the plaintiff, and did then and there wrongfully knock the said plaintiff down, and did then and there, by such beating and knocking, break the plaintiff's right leg at the ankle." The defendant answered as follows: "Now come Peter Mangold, and for answer to the petition of said plaintiff filed herein, denies each and every allegation in said petition contained, and further answering said petition, alleges the facts to be that on or about the 8th day of October, 1897, said plaintiff made an assault on this defendant, and while this defendant was pulling back, and using no more force than was necessary to resist said assault, said plaintiff slipped and fell to the floor; and whatever injury he received was caused by his own fault and not by any blow of this defendant." This answer amounts to a denial that the defendant assaulted or beat the plaintiff, and an affirmative allegation that the plaintiff injured himself in his efforts to commit an assault and battery on the defendant. The affirmative matter amounts to nothing more than an argumentative denial. Taken as a whole, then, the answer is a bare general denial. In an action of this kind, evidence of facts tending to justify the assault is not admissible under a general denial. One of the prime objects of pleading is to apprise his adversary of the nature of the charge or defense of the pleader. It would be too much to insist on absolute fairness in this regard, but certainly it is not unreasonable to refuse to listen to the excuses one attempts to make for committing an act which at the same time he solemnly denies he committed. Barr v. Post, 56 Neb. 698, 77 N.W. 123; Levi v. Brooks, 121 Mass. 501; Senecal v. Labadie, 42 Mich. 126, 3 N.W. 296; Grace v. Teague, 81 Me. 559, 18 A. 289. But the defendant insists that the evidence of previous threats was admissible in mitigation of damages. In this state, the recovery in cases of this kind is limited to compensatory damages. No recovery can be had of punitive or exemplary damages. In theory, at least, the damages recoverable are the pecuniary equivalent of the injury. By offering such evidence in mitigation of damages, the defendant admits the assault, and that it was wrongful. As the law will not permit any assessment of damages against the defendant by way of punishment, neither will it permit any reduction of the pecuniary damages actually sustained by the plaintiff, for that purpose. In short, threats can not be shown in...