Rust v. Schwiening

• Decision Date: 21 November 1919
• Docket Number: 10,137
• Citation: 124 N.E. 878,72 Ind.App. 497
• Parties: RUST v. SCHWIENING
• Court: Indiana Appellate Court

124 N.E. 878

72 Ind.App. 497

RUST v. SCHWIENING

No. 10,137

Court of Appeals of Indiana

November 21, 1919

Rehearing denied February 6, 1920.

From Lake Circuit Court; John B. Peterson, Special Judge.

Action by William Schwiening against Henry Rust. From a judgment for plaintiff, the defendant appeals.

Affirmed.

George E. Hershman, for appellant.

Otto J Bruce, for appellee.

ENLOE J. McMahan, J., not participating.

OPINION

ENLOE, J.--

Action by appellee against appellant for damages for assault and battery. The complaint was in one paragraph, to which there was answer in general denial. The cause was submitted to a jury, which found for appellee, and assessed his damages at $ 350, for which sum the court rendered judgment. Appellant's motion for a new trial being overruled, he prosecutes this appeal.

The only alleged error appellant has presented for our consideration is the action of the court in overruling his motion for a new trial.

The assault and battery complained of took place, as shown by the record, under the following circumstances: The appellee was at the time of the assault at the home of one Bosel, who had married a cousin of appellee; that he had been called to said home by phone, on account of the death, that day, of his said cousin, Mrs. Bosel; that he arrived at the Bosel home about 7 p. m.; that the appellant was at said home at the time; that prior to said day appellee and appellant had not been on friendly terms, and had not spoken, when they met, for about four years; that appellant and appellee first met on the evening in question, when appellee went into the room where the body of his cousin was lying, to view the remains; that appellant then and there accosted him, and called him by several opprobrious epithets, and twice spit in the face of appellee, deliberately and intentionally.

The giving of the sixth and seventh instructions given at the request of the appellee is first complained of. In the sixth instruction the jury were told, among other things, that, in considering appellee's damages, they might allow him compensation for future suffering, and it is objected that this was not proper because the complaint contained no allegation of permanent injury, nor concerning future pain and suffering, and that therefore the jury had no right to consider such elements as future pain and suffering, mental or physical, in considering the damages to be awarded.

There is no merit in this contention. In the case of Morgan v. Kendall (1890), 124 Ind. 454, 24 N.E. 143, 9 L. R. A. 445, it was said: "The complaint in this case alleges that by reason of the injuries inflicted by the appellants he was hurt and injured, and became and was sick. Under these allegations we think the appellee might prove the extent of his injuries, as well as the extent of his physical and mental suffering, resulting immediately from the assault and battery alleged in his complaint. Such physical and mental suffering was not the subject of special damages within the legal meaning of that term, and it was not necessary to specifically set them out * * *." In the case of McGlone v. Hauger (1914), 56 Ind.App. 243, 104 N.E. 116, it was said: "The law will presume, in cases like the one at bar, that the victim of such assault was damaged thereby." And it has been repeatedly held that any natural and direct consequence of an injury is not a matter of special damages, and recovery may be had therefor, without special allegations in reference thereto. Wright v. Compton (1876), 53 Ind. 337; Cox v. Vanderkleed (1863), 21 Ind. 164.

Upon the facts shown in this record, unless the appellee be a person wholly without any sense of personal honor, personal pride, or of what the word "manhood" signifies, coupled with an entire lapse of memory, he will ever carry with him a consciousness of his treatment on the day and at the time in question; and, if he has a man's appreciation of a man's rights, privileges, and honor, he can never, and will never, think of this occurrence except with a feeling of humiliation. This instruction is not open to the objections which the appellant has made.

The seventh instruction, given at request of the appellee, is challenged by appellant as being wrong in three several particulars, set forth in his brief as specifications "A," "B," and "C." This instruction is not open to either of the criticisms complained of, and we do not search the record to determine whether it be objectionable as to any other matter. If it was erroneous as to other matters, it was the business of counsel for appellant to point out such defect if he desired to object thereto on such ground, and, not having in his brief assailed said instruction on any other ground than those specified, all others are waived; and an attempt by ap...