Schmidt v. Pfeil

Dixon, C. J. The allegations of the complaint were sufficient to let in the evidence with regard to the expenses incurred by the plaintiff for medical attendance. [455] If the defendants had desired more specific information in that respect, they should have moved, under the statute, to have the complaint made more definite and certain. The question put to the plaintiff as to. his having felt any lameness or effects from the injuries after the expiration of the first seven weeks after the battery, was legitimate and proper. The evidence was not inadmissible on the ground that the damage was too remote, or of that special or pecular kind which must be specifically set forth in the complaint, by way of aggravation, in order that the defendant may have due notice of the claim. It was not evidence of that kind of damage which the law would imply was not the natural and necessary consequence of the assault and battery. It was evidence of damage which might naturally and necessarily have resulted from the acts complained of; and it was for the jury, upon the whole evidence, to say whether it did so result, or was the obviously probable effect of the beating; and hence the evidence was admissible under the general allegation. It may be doubtful whether proof of the number, size, age and condition of the family of the defendant should in any case be received by way of mitigating the damages to be recovered. But, conceding that such proof is admissible, the offer here was insufficient, for the reason that it was not made in such form that the court can see that the evidence was or might have been material for the purpose for which it was offered. If material at all, as affecting the question of damages, it must have been because the family of the defendant Pfeil was large, and that it required all his means, together with the rewards of his time and labor, to provide for its support. Upon this point the offer was defective; for, without proposing to prove this, the evidence was or may have been wholly immaterial. It may be that the family of the defendant was very small, or that he had none dependent on him for support ;■ and in the [456] absence of any stteament in the offer showing the number, size, age and condition of the family, nothing can be assumed in that respect for the sake of holding the rejection of the evidence erroneous. The offer should have embraced every fact necessary to 'show the materiality of the evidence. The only remaining exception, relied upon by counsel for the defendants, is that to the instruction of the court, that the intoxication of the defendant Pfeil, at the time he committed the assault upon the plaintiff, was not a mitigating circumstance to be taken into consideration by the jury in determining the amount of exemplary damages which the plaintiff was entitled to recover in the action. We presume this instruction was given by the court below in view of the fact that there was no evidence before the jury that the defendant was in such a state of intoxication as to be in any manner deprived of his reason, or irresponsible for the acts which he committed. An examination of the evidence, so far as it is reported to this court, satisfies us that such was the condition of the defendant. He was not so intoxicated that that circumstance ought to have been considered at all in palliation or excuse of the offense which he perpetrated. By the Court. — Judgment affirmed.