Opinion
No. 16,534.
Filed November 14, 1941.
1. ASSAULT AND BATTERY — Civil Liability — Actions — Damages — Amount — Loss of Services of Wife — $1,000 Not Excessive. — Where, in an action by a husband for loss of services and society of his wife and for medical expenses incurred resulting from an assault and battery committed on the wife, there was evidence that the wife suffered an injury to her head, including a contusion and concussion which caused her to be confined in the hospital for nine days, and caused her headaches which continued from the time of the injury up to the time of trial, a period of over six years, so as to prevent her from performing her usual domestic duties, and to deprive the husband of her association and society, a verdict in favor of the husband in the amount of $1,000 was not excessive. p. 641.
2. ASSAULT AND BATTERY — Civil Liability — Actions — Damages — Elements — Medical Expense Incurred in Treating Injured Wife. — In an action by a husband for loss of services and society of his wife and for medical expenses incurred resulting from an assault and battery committed on the wife, the husband was entitled to recover the medical expense notwithstanding the fact that the doctor testified that he made the charge against the wife, where there was no evidence that the wife agreed to accept the liability. p. 641.
3. DAMAGES — Measure of Damages — Husband's Action for Loss of Wife's Services — Discretion of Court or Jury. — In an action by a husband for loss of services and society of his wife and for medical expenses incurred resulting from an assault and battery committed on the wife, evidence of the value of the wife's services and society is not necessary in fixing the amount of damage for such loss, since such damage is not in its nature susceptible of direct proof; but when the facts are shown, the assessment of compensation must be committed to the sound discretion of the trial court or jury. p. 641.
4. APPEAL — Pleadings — Amendment on Appeal — Damages Sustained After Filing of Complaint. — Where, on appeal from a judgment in an action for assault and battery, the defendant failed to point out wherein he made timely objection to evidence concerning damages sustained after the filing of the complaint, such complaint, which contained no averments concerning such damage, was deemed amended to conform to the proof. p. 642.
5. APPEAL — Record — Instructions — All Instructions Given Not Set Out — Questions Concerning Refusal to Give Requested Instructions Not Presented. — Where appellant fails to set out all of the instructions given by the court, no question concerning the refusal of the court to give his requested instructions can be presented. p. 642.
6. WITNESSES — Credibility — False Testimony Knowingly Given — Effect — Instruction to Jury Proper. — An instruction, that if the jury believes that any witness has knowingly and willfully sworn falsely to any matter material to the issue, then the jury is at liberty to disregard the entire testimony of such witness, except as it is corroborated by other credible evidence, is a correct statement of the law. p. 642.
7. APPEAL — Presentation in Lower Court of Grounds of Review — Instructions — Omissions Not Pointed Out. — Where appellant states that certain mandatory instructions do not contain all the necessary elements for mandatory instructions, but fails to point out any omissions, and none appeared to the Appellate Court, no error could be predicated on the giving of such instructions. p. 643.
8. APPEAL — Harmless Error — Instructions — Typographical Error — Jury Not Misled. — The use of the word, "defendant," in an instruction when the word, "plaintiff," should have been used was so obviously a typographical error that the jury could not have been misled; and no error could be predicated on appeal upon the giving of such instruction. p. 643.
9. JUDGMENT — Evidence of Judgment as Defense — Judgment of Appellate Court in Different Cause of Action Inadmissible. — The action of the trial court, in refusing to admit in evidence the judgment of the Appellate Court relating to a different cause of action and rendered long after the assault and battery involved in the action wherein the ruling was made, was not error. p. 643.
10. ASSAULT AND BATTERY — Civil Liability — Actions — Evidence — Affidavit Filed in Different Action Irrelevant. — In an action by a husband for loss of services and society of his wife and for medical expenses incurred resulting from an assault and battery committed on the wife, the court did not err in refusing to admit in evidence an affidavit of the husband, filed nearly two years after the assault and battery as an answer to a contempt citation against the husband in another and separate case, where it disclosed nothing which could be in any manner relevant to the issues in the case. p. 643.
11. APPEAL — Evidence — Admission — Questions, Objections and Rulings Not Shown — Effect. — Where, on appeal, error is assigned upon the admission of evidence, but no attempt is made to point out or set out even in substance the questions asked, the objections made, or the rulings thereon, no question is presented for review. p. 644.
From the Lake Superior Court; Bertram C. Jenkines, Judge.
Action by George Preuss against Asa Hooper for damages resulting from an assault and battery committed upon plaintiff's wife. From a judgment for plaintiff, defendant appealed.
Affirmed. By the court in banc.
Sheehan Lyddick and Alex Pendleton, all of Gary, for appellant.
H.J. Douthett and J.M. Stinson, both of Hammond, for appellee.
This action was brought by appellee, George Preuss, against the appellant, Asa Hooper, for damages by reason of medical expense and the loss of the services and society of his wife, resulting from an assault and battery upon her by appellant.
The verdict of the jury was for appellee in the sum of $2,875. Upon the filing by appellee of a remittitur in the sum of $1,875, the court entered judgment on the verdict in the sum of $1,000.
The sole error assigned is the overruling of appellant's motion for a new trial. Its grounds are: (1) Excessive damages; (2) the verdict is not sustained by sufficient evidence; (3) the verdict is contrary to law; (4) error in the giving and refusal of certain instructions; and (5) error in admission and rejection of certain evidence.
The only proposition presented under the first three assignments of the motion is that there was no evidence on which the jury could have based the amount of its verdict.
There is evidence to the effect that appellee's wife, as a result of the assault and battery, suffered injuries to her head, including a contusion and a concussion which caused her to 1. be confined in a hospital for nine days, and caused her headaches which continued from the time of the injury up to the time of trial, a period of over six years, so as to prevent her from performing her usual domestic duties, and to deprive appellee of her association and society. Medical and hospital expense of $237.30 was incurred. The above seems to us ample evidence to support a verdict of $1,000, the amount after the remittitur was filed.
Appellant contends that appellee is not entitled to recover the medical expense because the doctor testified that he made the charge against the wife. There is no merit in such 2. contention. There is no evidence that the wife agreed to accept the liability, and the husband is therefore entitled to recover for it. Reinhardt v. Friederich (1915), 58 Ind. App. 421, 108 N.E. 258; Indiana Union Traction Co. v. McKinney (1906), 39 Ind. App. 86, 78 N.E. 203; Board of Commissioners of Shelby County v. Castetter (1893), 7 Ind. App. 309, 33 N.E. 986, 34 N.E. 687; City of Columbus v. Strassner (1894), 138 Ind. 301, 34 N.E. 5, 37 N.E. 719.
Appellant also insists that there is no evidence of the value of the wife's services and society, and therefore the jury could not fix the amount of damage for such loss. Such evidence 3. is not necessary. As our Supreme Court said in the case of Indianapolis Traction, etc., Co. v. Menze (1909), 173 Ind. 31, 36, 88 N.E. 929, 89 N.E. 370:
"The damages from the loss of services, society and companionship of a wife is not in its nature susceptible of direct proof, but when the facts are shown the assessment of compensation must be committed to the sound discretion and judgment of the trial court or jury."
Appellant also contends that since the complaint contains no averments as to any loss after the time of the filing of the complaint, evidence as to any such loss was not competent 4. for the jury's consideration. Appellant has failed to point out wherein he made timely objection when such evidence was offered, and we must therefore consider the complaint amended to conform to the proof. § 2-3231, Burns' 1933, § 505, Baldwin's 1934.
Appellant next complains of the refusal of certain instructions tendered by him. Where error is so predicated, appellant must set out all the instructions given at the trial. Wood v. 5. C. E.R.R. Co. (1939), 215 Ind. 467, 18 N.E.2d 772, 20 N.E.2d 642; Maxey v. State (1938), 214 Ind. 623, 16 N.E.2d 880. This he has failed to do, and therefore has presented no questions as to such instructions.
Appellant also complains of instructions numbered 6, 18, 6. and 19 given by the court of its own motion. Instruction numbered 6 is as follows:
"If you believe from the evidence that any witness in this case has knowingly and wilfully sworn falsely to any matter material to the issue in this case, then you are at liberty to disregard the entire testimony of such witness, except as it has been corroborated by other credible evidence."
Appellant has not pointed out wherein he asserts that the instruction is erroneous. We think it correctly states the law. See Lemmon v. Moore (1884), 94 Ind. 40; Selz, Schwab Co. v. Gullion (1918), 187 Ind. 328, 119 N.E. 209; Finch, Admr., v. McClellan (1922), 77 Ind. App. 533, 130 N.E. 13, 131 N.E. 236.
The court's instructions numbered 18 and 19 inform the jury that if it finds from the evidence certain stated facts, it must find for the "defendant" (plaintiff). Appellant claims that 7. these instructions do not contain all the necessary elements for mandatory instructions. However, he fails to point out any omissions and we do not find any.
Also in the court's instruction numbered 19, appellant says the court used the word "defendant" when the word "plaintiff" should have been used. That this was a typographical error is so 8. obvious that the jury could not have been misled.
Appellant next complains of the court's refusal to admit into evidence, pages 513 and 514 of 11 N.E.2d which were offered for the purpose of proving the judgment of this court in 9. the case there reported.
The judgment in question related to a different cause of action and was rendered long after the assault and battery here involved. It was not in any way relevant to the issues, and no error was committed in refusing its admittance.
Appellant next contends that the court should have admitted into evidence his exhibit numbered 2, which was an affidavit of appellee, George Preuss, filed nearly two years after the 10. assault and battery here involved, as an answer to a contempt citation in another and separate case. We have examined the affidavit carefully, and we can find nothing in it which could in any manner be relevant to the issues in this case. The court properly refused its admittance.
Appellant next says that the court erred in admitting into evidence and refusing to strike out "all the testimony of plaintiff and of Emma Preuss as to any money expended 11. or obligations incurred by the plaintiff subsequent to the filing of plaintiff's complaint." But no attempt is made to point out or set out even in substance the questions asked, the objections made, or the rulings thereon; and therefore no question is presented. Shank Fireproof Warehouse Co. v. Harlan (1941), 108 Ind. App. 592, 29 N.E.2d 1003; Heltonville Manufacturing Company v. Fields (1894), 138 Ind. 58, 36 N.E. 529.
Judgment affirmed.
Curtis, J., not participating.
NOTE. — Reported in 37 N.E.2d 687.