Peterson v. Liddington

Citation108 N.E. 977,60 Ind.App. 41
Decision Date25 May 1915
Docket Number8,623
PartiesPETERSON v. LIDDINGTON
CourtCourt of Appeals of Indiana

Rehearing denied November 4, 1915.

From Lake Superior Court; Johannes Kopelke, Judge.

Action by William Liddington against John Peterson. From a judgment for plaintiff, the defendant appeals.

Affirmed.

McMahon & Conroy, for appellant.

McAleer Bros. and McGirr & Ross, for appellee.

OPINION

FELT, J.

This is an appeal from a judgment for $ 3,000 obtained by appellee against appellant as damages for assault and battery. The gist of the complaint is that appellant violently struck beat and wounded appellee, and also wilfully and violently threw him from a house and down upon a pile of rubbish thereby injuring his head, face, back, arms and neck and breaking his leg. The complaint also contains averments showing pain and suffering and expenses incurred as hospital bills and for medical care and treatment, loss of time and wages and permanent injuries for which damages are asked in the sum of $ 5,000. The complaint was answered by general denial and by a paragraph of affirmative answer, the gist of which is that the injuries of appellee, if any, were caused by himself while he was a trespasser on the property of appellant and in the act of leaving the premises in obedience to appellant's order.

The error assigned and relied on for reversal of the judgment is the overruling of appellant's motion for a new trial. The alleged reasons for a new trial not expressly or impliedly waived are (1) that the verdict is contrary to law, (2) excessive damages and (3) error in the giving of certain instructions.

The first contention can not be sustained as the only reason given in support thereof is that "The record shows an impossible state of facts, against natural law, that a man 67 years of age, weighing 175 pounds would be physically able to throw a man 64 years of age and weighing 165 pounds, seven feet." We could not sanction the above proposition if all the evidence agreed with the foregoing statement but the different versions of the transactions do not all accord with the statement, but show conclusively that the contention can not be sustained.

The propositions and arguments advanced to show that the damages are excessive seem to be in the main, if not altogether based on the instructions given the jury. Appellant says: "In view of the instructions given by the court, the jury was misled as to the measure of damages, indicating that the jury acted from prejudice and partiality by being misled as to the measure of damages. * * * We are firm in the opinion that if the court had given instructions that conform to the well-recognized legal principles governing the subject of damages, the jury would not have been misled." When an appeal is taken, every presumption is indulged in favor of the correctness of the judgment of the trial court. The burden is on the appellant to show error in the judgment from which the appeal is taken. This court will not search the record to reverse but will do so to affirm the judgment of the trial court. Webster Bligh (1912), 50 Ind.App....

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