Schlosser v. Fox

Perkins, J. Fox sued Schlosser for an assault and battery. Schlosser demurred to a paragraph of the complaint, assigning for cause that it contained two causes of action. The demurrer was rightly overruled. The objection should have been taken by motion to strike out. Perk. Pr., 166. The defendant answered by general denial, and specially, son assault demesne. A demurrer was sustained to the second paragraph, and rightly, because it did not show that the first assault alleged justified or excused the second, for which suit was brought. 2 Pet. Abr. 375. See 4 Ind. R. 442, and cases cited. The defendant filed a third paragraph of his answer, setting forth that he had not been cited before the Court of conciliation. This was no bar to the suit. It might have been for a motion upon taxation of costs. Perk. Pr., p. 366. On the trial, the defendant offered to prove, in mitigation of damages, that the plaintiff, Fox, had caused a prosecution for malicious mischief to be instituted- (among others) against the minor son of the defendant, and that [366] he assaulted and beat him for so doing. Pie also offered to give the record of such prosecution in evidence. See 2 Greenl. Ev., p. 69. He also offered to prove that the plaintiff, Fox, had, some two or three days before the commission of the assault and battery, given him, defendant, great provocations, without specifying particularly what they were. B. F. Gregory, J. Harper, and J. N. Brown, for the appellant. B. A. Chandler, for the appellee. The Court refused all these items of evidence. If matter in mitigation can be given in evidence under the general denial, we think the above described items of evidence were rightly excluded—the first as being no matter of mitigation; the second as being irrelevant; and the third as being too indefinite in the offer, and probably of too long prior occurrence. 2 Greenl. Ev., p. 70.—Fullerton v. Warrick, 3 Blackf. 219. In view of the facts of the case, and, as one of them, that the damages recovered were but 35 dollars, we think the defendant below was not seriously injured by the exclusion of evidence in mitigation. Per Curiam. The judgment is affirmed with 5 per cent, damages and costs.