Myers v. Moore
| Decision Date | 15 October 1891 |
| Docket Number | 297 |
| Citation | 28 N.E. 724,3 Ind.App. 226 |
| Parties | MYERS v. MOORE |
| Court | Indiana Appellate Court |
Petition for a rehearing overruled Dec. 12, 1891.
From the Elkhart Circuit Court.
Judgment affirmed, with costs.
H. C Dodge and J. S. Dodge, for appellant.
H. D Wilson, W. J. Davis, and H. C. Wilson, for appellee.
This is an action by the appellee against the appellant, to recover for injuries resulting from an assault and battery, alleged to have been committed upon the appellee by the appellant.
The complaint is in two paragraphs, each charging the same assault and battery, but in the second paragraph special in addition to general damages are set out and claimed.
Demurrers to each paragraph were submitted, overruled and exceptions reserved. The appellant's answer was a general denial.
There was a trial by jury and finding for the appellee in the sum of one thousand dollars. A motion for a new trial made by the appellant was overruled and exception taken.
The appellant has assigned as error the overruling of demurrers to the first and second paragraphs of the complaint, and the overruling of the motion for a new trial.
It is insisted by appellant's counsel that it should be made to appear, from the allegations in the complaint, that the appellee, at the time of his injury, was not so acting as to excuse or justify the assault and battery complained of.
If this were done it would be the equivalent of a direct averment that the appellee was without fault; or, expressed somewhat differently, that there was no such fault, if any, on his part, as would excuse or justify the acts of the appellant.
To hold this to be a necessary averment, in any form, would be, in effect, to apply the doctrine of contributory fault or negligence to civil actions for assault and battery. The doctrine of contributory fault or negligence does not apply to such cases. This has been so firmly settled by the decisions in this State that we do not deem it necessary to do more than refer to the decided cases. Steinmetz v. Kelly, 72 Ind. 442; Whitehead v. Mathaway, 85 Ind. 85; Norris v. Casel, 90 Ind. 143. See, also, Beem v. Chestnut, 120 Ind. 390, 22 N.E. 303.
The grounds of the motion for a new trial, we will now examine, in the order of their discussion by counsel.
We are not prepared to say that the damages assessed by the jury are excessive. We have examined the evidence, and find that the appellee's jaw was broken, and some of his teeth knocked out, by kicks received from the appellant, while the appellee was down. The amount awarded by the jury as a compensation for the injuries received we do not, upon an examination of the evidence, feel justified in disturbing.
The next reason assigned for a new trial, is "for abuse of the discretion of the court in refusing to permit the defendant to amend his answer."
After all the evidence was in, the appellant asked leave to file an additional paragraph of answer, to wit, that of self-defence. An answer of general denial was all that had theretofore been filed.
It is shown by bill of exceptions that counsel for the appellant, in his opening statement to the jury and court, said that the defence to the complaint would be that of self-defence. It is also claimed by counsel for the appellant that there was evidence tending to show that the appellant was acting in self-defence only when he inflicted upon the appellee the injuries sued for.
The court refused to allow the additional paragraph of answer to be filed.
Whether permission should be given to amend the pleadings after the issues are closed, before the commencement of the trial, or upon the trial, is largely within the sound discretion of the lower courts, and should not be allowed except upon a sufficient showing. The decision of the nisi prius court, however, is not conclusive. It may be reviewed in this court, and will not be sustained where substantial injustice appears to have been done. Burr v. Mendenhall, 49 Ind. 496; Chicago, etc., R. W. Co. v. Jones, 103 Ind. 386, 6 N.E. 8.
We do not think any sufficient reason is disclosed by the record why the court should have permitted the amendment.
The defence of son assault demesne must be pleaded specially. This is the rule at common law, and it is not otherwise under the code. By section 356, R. S. 1881, it is declared that "All defences except the mere denial of the facts alleged by the plaintiff shall be pleaded specially." See 3 Blackstone Com., pp. 120 and 306; 1 Chitty Pleading, p. 535; Norris v. Casel, 90 Ind. 143.
Counsel for appellant, before entering upon the trial, had concluded to rest the cause of his client upon the ground of self-defence, and so announced to the court and jury. The fact, if it be such, that evidence was admitted without objection tending to show that the appellant was acting in self-defence can make no difference. Evidence offered or introduced for that purpose was not within the issues as formed, and we do not think the court was required to consider or be influenced by that evidence in passing upon the appellant's motion for leave to file an additional paragraph of answer. The refusal of permission to file the additional paragraph of answer was not, in our opinion, an improper exercise of the discretion possessed by the lower court.
It follows from what we have said that the court did not err in refusing to give to the jury the instructions requested by the appellant. These instructions related to the law of self-defence. There was no such issue in the case. The instructions of the court must be applicable to the issues. Norris v. Casel, supra.
The next ground named for a new trial is alleged error by the court in compelling the appellant to go to trial before a special jury.
It is shown by the record that the cause came on for trial on the 2d day of April, 1890, and that there remained two weeks and four days more of that term. One other jury trial had been set down for the 9th day of the same month, and the court had announced that on the 5th of April the jury would be discharged until the 9th.
When the court was ready on the...
To continue reading
Request your trial