Pixley v. Catey

Decision Date12 May 1936
Docket Number15214.
Citation1 N.E.2d 658,102 Ind.App. 213
CourtIndiana Appellate Court

Appeal from Lake Circuit Court; T. Joseph Sullivan, Judge.

Action by Emma Catey against Edward Pixley. Judgment for plaintiff and defendant appeals.

Reversed with instructions.

Victor K. Roberts, of Lowell, and Ray C. Hedman and Geo. E Hershman, both of Crown Point, for appellant.

A. A Bremer, E. Miles Norton, both of Crown Point, for appellee.


This was an action in damages by appellee for personal injuries alleged to have been received as the consequence of an assault and battery by appellant. The complaint was in two paragraphs. To this the appellant filed an answer in two paragraphs; the first in general denial, and the second paragraph a plea of self-defense. To the second paragraph of answer the appellee filed a reply in general denial, closing the issues. The cause was submitted to a jury for trial, resulting in a verdict for the appellee in the sum of $1,500. The appellant seasonably filed his motion for new trial, which was overruled by the court, and judgment entered for the appellee and against the appellant. An appeal to this court was prayed and perfected, the only error assigned here being the action of the court in overruling appellant's motion for a new trial. The grounds of that motion properly presented here under the propositions, points, and authorities in the appellant's brief are: (a) That " the verdict of the jury is not sustained by sufficient evidence" ; (b) that " the verdict of the jury is contrary to law" ; (c) that " the damages assessed by the jury are excessive" ; (d) that " the court erred in refusing and failing to give to the jury an instruction as to the measure of damages covering the issuable facts in the cause and limiting the jury in assessing damages" ; and (e) error of the court with relation to the admission of certain evidence.

While the evidence concerning the alleged assault as well as the evidence in support of the plea of self-defense is in sharp conflict, the jury alone had the right to weigh the evidence, and there is sufficient evidence to sustain the verdict from that viewpoint. A much more difficult question is raised by the ground of the motion for new trial charging that the damages assessed are excessive.

The whole theory of damages in civil actions is that the injured party is entitled to compensation or indemnity for the injury or loss sustained. This compensation should be fixed by the jury only upon the evidence introduced in the case as to the right of the injured party to receive such compensation and the duty of the aggressor to pay, but only what he should justly pay. It must be pointed out that the damages claimed in the present action were alleged to be as the result of an assault and battery by the appellant upon the person of the appellee for which the appellant could also have been prosecuted criminally. In such a case, punitive or exemplary damages could not be...

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