Selland v. Nelson

• Decision Date: 05 June 1911
• Citation: 132 N.W. 220,22 N.D. 14
• Parties: SELLAND v. NELSON
• Court: North Dakota Supreme Court

132 N.W. 220

22 N.D. 14

SELLAND v. NELSON

Supreme Court of North Dakota

June 5, 1911

Appeal from District Court, Pierce county; A. G. Burr, J.

Action by Hilda Selland against Halvor Nelson. Judgment for plaintiff, and defendant appeals.

Reversed and new trial ordered.

Judgment and order reversed and a new trial ordered.

Albert E. Coger and T. A. Toner, for appellant.

L. N Torson and R. E. Wenzel, for respondent.

KNEESHAW Special Judge. MORGAN, Ch. J., not participating. W. J. KNEESHAW, Judge of the Seventh Judicial District, sat with the court by request upon the hearing.

OPINION

KNEESHAW, Special Judge.

This is an appeal from a judgment in favor of the plaintiff and respondent, in an action for damages for assault and battery, and from an order denying a motion for a new trial. In order to fully understand the errors assigned, it is necessary to quote or set forth the complaint on which such action is based, which complaint is in substance as follows: "(1) That during the fall of 1905 she was in good health, mentally and physically. (2) That on or about the 1st day of October, 1905, the defendant violently assaulted the plaintiff, laid violent hands upon her, twisted and bruised her arm, and otherwise injured the plaintiff. (3) That the plaintiff was thereby disabled from attending to her business for three months thereafter; and was for a long time lamed and sick, and was compelled to pay $ 100 for medical attendance, to her damage in the sum of $ 100. (4) That the plaintiff was, owing to the wrongful acts of the defendant, unable to pursue her calling for a period of three months, to her damage of $ 100. (5) That owing to the injuries caused by the defendant, by the unlawful assault and battery heretofore mentioned, the plaintiff has suffered injuries to the amount of $ 500. Wherefore, the plaintiff demands judgment against the defendant for the sum of $ 500, and for the costs and disbursements of her action."

The answer of the defendant was a general denial. The jury brought in a verdict for $ 500, or the full amount claimed.

Defendant and appellant, in his specifications of error, sets up nine specifications or assignments of error, the first five specifications referring to the refusal to strike out certain evidence and the admission of evidence; and the sixth, seventh, and eighth, referring to alleged errors in the judge's charge, which were duly excepted to within the time provided by law; and the ninth being for an alleged error in the court's refusal to charge the jury as requested by the defendant in writing. For the reasons hereinafter stated the court deems it unnecessary to review or pass upon the first five assignments of error, and will therefore pass to the more important questions involved.

The court in its charge to the jury instructed them as follows "In determining the amount which you will allow for physical suffering, you may take into consideration the fact that the doctor's bill amounted to over $ 200, if you find such to be the fact, for the purpose of determining the amount or degree of the injury, and in aiding you in arriving at the proper compensation. In other words, while the total amount of the doctor's bill might not be permissible because it has not been pleaded, but you may take it into consideration in aiding you in determining how much you will allow for physical suffering resulting from such injury, if you find there was any, and also the loss of time that may...