Niemeyer v. McCarty
| Decision Date | 22 May 1943 |
| Docket Number | 16964. |
| Citation | 48 N.E.2d 829 |
| Parties | NIEMEYER et al. v. McCARTY et al. |
| Court | Indiana Appellate Court |
Appeal from Jasper Circuit Court; Moses Leopold, Judge.
Action by Ernest B. McCarty against Adolph Niemeyer, Sr., Adolph Niemeyer, Jr., and Harry Boesel for assault and battery. From a judgment for plaintiff, defendants Adolph Niemeyer, Sr. and Adolph Niemeyer, Jr., appeal, naming defendant Harry Boesel as an appellee.
Affirmed.
John W. Lyddick, Alex Pendleton, and Harry Long, all of Gary, for appellants.
E Miles Norton, of Crown Point, and Abraham Halleck, of Rensselaer, for appellees.
This is an action brought by appellee, Ernest B. McCarty, against the appellants, Adolph Niemeyer, Sr., and Adolph Niemeyer, Jr. and appellee, Harry Boesel, to recover damages for assault and battery.
Trial to jury resulted in verdict and judgment against all the defendants below in the sum of $3,000. Harry Boesel did not join in the appeal and was therefore made an appellee.
The sole error relied upon for reversal is the overruling of appellants' motion for a new trial which asserts: (1) That the verdict is not sustained by sufficient evidence; (2) that the verdict is contrary to law; (3) that the damages assessed are excessive; (4) that the court erred in its rulings on the exclusion of certain evidence; (5) that the court erred in making certain remarks in the presence of the jury; (6) that the court erred in the refusing of certain instructions; and (7) that the court erred in refusing to require the jury to answer certain interrogatories.
Under the above specifications of the motion for a new trial numbered 1 and 2 appellants say that the evidence is insufficient because it fails to show that the defendants below acted "jointly" or that there was "concerted action" between them.
If a second person joins in an assault and battery, even after it has started, either by encouraging its continuation or by actually assisting, the assault and battery is joint and the second person is liable with the first for such injury as occurs after he joins. Little v. Tingle, 1866, 26 Ind. 168; Perrine v. Hanacik, 1913, 40 Okl. 359, 138 P. 148, 51 L.R.A.,N.S., 718 and note.
There is evidence that one of the defendants below held the appellee while the other two committed the battery which resulted in the injuries complained of. Such evidence is sufficient to show a joint assault and battery.
Appellants say that the amount of damages assessed are excessive because the evidence shows that appellee incurred hospital and doctor bills not to exceed $500 and shows no other financial loss.
But in assault and battery, damages may be recovered not merely for pecuniary loss but for injuries at the time, permanent injuries resulting therefrom, mental suffering and mortification of feeling, loss of time from work, physical pain, sense of shame, mental anguish and pain and humiliation. Singer, etc., Machine Co. v. Phipps, 1911, 49 Ind.App. 116, 94 N.E. 793.
There is evidence of the following:
Appellee suffered a fractured bone in his face, fractures of six ribs, four of them in two places, and a punctured lung. He had to have four or five teeth removed, was confined to the hospital for nine days and was unable to work for a year. His injuries are permanent. He has trouble breathing, spits up blood and is more susceptible to lung diseases. His chest has a depression.
The amount of the verdict against this background of evidence is not such as to enable this court to say that the jury acted through prejudice, passion, partiality or corruption. See Peterson v. Liddington, 1915, 60 Ind.App. 41, 108 N.E. 977.
Appellants next complain that the court erred in refusing to allow them to introduce into evidence for the purpose of impeaching appellee, who had taken the stand, certain records which they claim show that he had been found guilty of contempt of court.
Section 2-1725, Burns' 1933, § 312, Baldwin's 1934, Acts 1881 (Spec. Session) Ch. 38, § 284, p. 240, reads as follows: "Any fact which might, heretofore, be shown to render a witness incompetent, may be hereafter shown to affect his credibility." This section has reference to the provisions of § 79, p. 999, Rev.St.1843, which defined infamous crimes and rendered those convicted of the defined crimes incompetent to testify even in civil actions. Dotterer v. State, 1909, 172 Ind. 357, 88 N.E. 689, 691, 30 L.R.A.,N.S., 846. The crimes there defined as infamous were treason, murder, rape, arson, burglary, robbery, manstealing, forgery, and wilful and corrupt perjury.
The purpose of impeachment is, of course, to call in question the veracity of the witness. This cannot ordinarily be done by extrinsic testimony as to particular acts of misconduct. Wilson v. State, 1861, 16 Ind. 392; Glenn v. Clore, 1873, 42 Ind. 60; 28 R.C.L., p. 623; 70 C.J., p. 834; Wigmore on Evidence, 3d Ed., p. 532. § 2-1725, Burns' 1933, supra, provides for an exception to this general rule, so that if a witness has been convicted of any of the infamous crimes described in § 79, p. 999, Rev.St.1843, supra, that fact is relevant, is not collateral, and may be shown by introducing the record of conviction. Jeffersonville, etc., R. R. Co. v. Riley, Admx., 1872, 39 Ind. 568, 588.
Contempt of court is not among the infamous crimes so designated and appellants were not therefore entitled to introduce into evidence the record of such conviction.
There is another reason why appellants were not entitled to have the proferred evidence introduced. The record sought to be introduced shows on its face that there was no judgment of conviction. There is a finding of guilty but that is not the equivalent of a judgment of conviction which would render it admissible for the purpose of impeaching appellee. Crawford v. United States, 1930, 59 App.D.C. 356, 41 F.2d 979, 70 C.J. p. 856. The mere fact that a person has been arrested and charged with an offense without subsequent conviction cannot be shown for the purpose of impeachment. Petro v. State, 1933, 204 Ind. 401, 184 N.E. 710.
Appellants next complain that the court refused to admit evidence offered by them that the reputation of the appellee for peace and quietude was bad. Ordinarily such reputation is not in issue in a civil case for assault and battery. Gebhart v. Burkett, 1877, 57 Ind. 378, 26 Am.Rep. 61; Elliott v. Russell, 1884, 92 Ind. 526; Sturgeon v. Sturgeon, 1892, 4 Ind.App. 232, 30 N.E. 805; Treschman v. Treschman, 1902, 28 Ind.App. 206, 61 N.E. 961. Some jurisdictions have held that under certain circumstances the defendant may introduce evidence as to the bad character of the plaintiff. See 4 Am.Jur. p. 208; 6 C.J.S., Assault and Battery, § 41a, p. 859. However, the situation here presented does not call for consideration of any exceptions to the general rule.
Appellants next assert that the court erred in refusing to permit appellants to impeach the appellee by questions on cross-examination as to former convictions for assault and battery and contempt of court.
We have stated above that a party may, for the purpose of impeachment, show by extrinsic testimony that a witness has been convicted of an infamous crime as defined in § 79, p. 999, Rev.St.1843. Or such fact may be shown upon cross-examination of the witness. Dotterer v. State, supra. To refuse to permit the adducement of such evidence would be error.
But neither assault and battery nor contempt of court is included in such list of infamous crimes. Cross-examination on such subjects must be under the rule that "any fact tending to impair the credibility of the witness by showing his interest, bias, ignorance, motives, or that he is depraved in character, may be shown on cross-examination; but the extent to which such cross-examination may be carried is within the sound discretion of the court." Dotterer v. State. supra [172 Ind. 357, 88 N.C. 692]; Grose v. State, 1926, 197 Ind. 331, 149 N.E. 722; Perfect v. State, 1926, 197 Ind. 401, 141 N.E. 52.
In discussing the rule applying to cross-examination, our Supreme Court, in the case of City of South Bend v. Hardy, 98 Ind. 577, 49 Am.Rep. 792, said:
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