McCarty v. Kinsey
| Decision Date | 18 April 1900 |
| Docket Number | 18,781 |
| Citation | 57 N.E. 108,154 Ind. 447 |
| Parties | McCarty v. Kinsey |
| Court | Indiana Supreme Court |
From the Marion Circuit Court.
Reversed.
F. W Cady, for appellant.
J. S Duncan, C. W. Smith, H. H. Hornbrook and Albert Smith, for appellee.
Appellant brought this action to recover damages for an alleged assault and battery committed by appellee upon the person of appellant, and for alleged slanderous words uttered by appellee of and concerning appellant at the time of the commission of said assault and battery, and as a part of the same transaction. Appellee filed an answer of former adjudication, to which appellant filed a demurrer for want of facts, which was overruled. Appellant refused to plead over, and final judgment was rendered against him.
The only error assigned calls in question the action of the court in overruling appellant's demurrer to the answer of former adjudication.
It is first insisted that the answer was insufficient because no copy of the pleadings in the former case was filed with said answer and made a part thereof. The answer of former adjudication is not founded on the pleadings in the former suit, and it is not necessary, therefore, to file with such answer a copy thereof as an exhibit. 1 Woollen's Tr. Proc. § 1858, and cases cited; Campbell v. Cross, 39 Ind. 155; Allen v. Randolph, 48 Ind. 496; Wilson v. Vance, 55 Ind. 584; Richardson v. Jones, 58 Ind. 240; Mull v. McKnight, 67 Ind. 525; McSweeney v. Carney, 72 Ind. 430.
It is next insisted that said answer is insufficient because the Marion Superior Court, in which the former suit is alleged to have been tried and determined, had no jurisdiction of actions for slander. In this State superior courts have no jurisdiction of actions for slander. § 1404 Burns 1894, § 1351 R. S. 1881 and Horner 1897. It will be observed, however, that the action was brought to recover damages for assault and battery, and for slanderous words uttered at the same time and as a part of the same transaction. Superior courts have jurisdiction of actions to recover damages for assault and battery. § 1410 Burns 1894, § 1357 R. S. 1881 and Horner 1897. The language used by the parties during the altercation is admissible in evidence as a part of the res gesta. Baker v. Gausin, 76 Ind. 317.
In actions for assault and battery the plaintiff recovers damages not only for the physical and mental suffering caused by the injury, but also for the humiliation, degradation, shame, loss of honor and good name, and mental suffering, if any, caused by the assault and battery and the language used by the defendant during the altercation. Taber v. Hutson, 5 Ind. 322, 61 Am. Dec. 96; Little v. Tingle, 26 Ind. 168; Lake Erie, etc., R. Co. v. Fix, 88 Ind. 381, 45 Am. Rep. 464; Wolf v. Trinkle, 103 Ind. 355, 357, 3 N.E. 110, and cases cited.
As the language used by the parties during an altercation may be given in evidence, and considered by the jury in determining the damages to be awarded, the mere fact that the language used was slanderous would not change the rule. Appellant having sued appellee in the Marion Superior Court to recover damages for assault and battery and slanderous words used by appellee during the altercation, that court had jurisdiction to try and determine the same as an action for assault and battery, treating the words uttered by appellee as a part of the transaction. The words used gave character to the act of assault and battery, and it was proper for the jury to consider them with all the circumstances in evidence and the humiliation, degradation, shame and loss of honor, and mental anguish, if any, caused thereby, in determining the amount of damages. If, therefore, appellant had recovered...
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