O'Leary v. Rowan

Ewing, Judge, delivered the opinion of the court. This was an action of trespass for an assault and battery upon the person of the plaintiff. The declaration is general, containing no allegation of any special damage ; nor does it [119] state that the wounding, bruising, &c., was followed by any particular ill-consequences. The bill of exceptions shows that on the trial of the cause the plaintiff introduced the physician who attended him in consequence of the injury, who, after testifying as to the. nature and appearance, &c., of the wounds occasioned by the battery, was asked by the plaintiff as to the amount of his bill for attention and services, to which defendant objected; but the objection was overruled, and the evidence allowed to go to the jury/ Was this evidence admissible upon the allegation of the petition ? We think not. In actions of this kind it is not necessary to make any special averment of matters which are the legal and natural consequences of the tortious act, for these the wrongdoer is presumed to anticipate, and can not therefore be taken by surprise in proof of them. The plaintiff may, therefore, under the usual allegation of assault and battery, give evidence of any damages naturally and necessarily resulting from the act complained of; for in such cases the law implies the damage. But where the damage is not thus directly connected with the act, or is consequential, as it is sometimes termed, then there is no such legal implication, and it must be specially laid in the petition. (See 2 Greenl. Ev. § 89; 1 Chitty Pl. 44.) As to the common law forms of declarations in such actions, see 2 Chitty Pl. 856. The answer of the defendant is a denial of the battery ; he does not justify under the plea of son assault desmene. Under such a plea the defendant must show that the plaintiff committed the first assault, and that what was done by him was thereupon done in necessary defence of his own person. (2 Greenl. Ev. § 96.) The first instruction asked by the defendant was therefore wrong. The second is also erroneous ; for if the assault was made by the defendant in repelling the plaintiff’s attack, he was not therefore justified, unless the force used by him was necessary to repel it:and was appropriate in kind and suitable in degree. (2 Metc. [120] 23.) The third submits a question of law to the jury, and was properly refused. The instructions given by the court on its own motion presented the law correctly to the jury. As the case goes back, it is necessary to notice the points made upon the application for a change of venue and a continuance. Judgment reversed and the cause remanded; the other judges concurring.