Lutlopp v. Heckmann

The opinion of the court was delivered by Hundrickson, J. This writ brings up for review a judgment upon a postea from the Hudson Circuit. The action is in tort for assault and battery. The alleged error complained of arises out of the charge of the trial judge. The exception that was sealed was taken to this part of the charge, to wit, “The result is that in either case the defendant made an assault upon the plaintiff, and it is therefore your duty, upon either interpretation of the facts, to return some verdict for the plaintiff.” The defendant's contention is that but for this practical direction of the jury that they should find some verdict, the facts would have warranted a possible verdict for the defendant, or there were such circumstances of mitigation that the verdict might have been for nominal damages only. At the outset we find a barrier to any judicial examination of the alleged error. There is no assignment of error that indicates the part of the charge complained of. The alleged error is defined in [273] the assignment as "error in the charge of the court to the jury, at the trial, of the issue joined in the cause herein,” &e. The rule is that the grounds of error should be definitely pointed out by the assignment or they will not be considered. Donnelly v. State, 2 Dutcher 463, 512; State v. Lewis, 10 Vroom 501. It may be proper to say, however, that even upon the merits of the point involved we find no error in .this part of the charge. Admittedly, as a result of the altercation between the parties, the defendant gave the plaintiff a "good shove,” causing the latter to fall upon the street with the defendant on the top of him, whereby the plaintiff’s arm was broken. It is true the defendant says that before he did this he was struck by the plaintiff on the lip, but he nowhere says that what he did do was necessary to the lawful defence of his own person. The evidence for the plaintiff Avas not returned with the writ, but, taking the evidence for the defendant, it plainly appeared, prima facie, that the assault complained of was established. Upon this point there was no question for the jury. The only defence suggested, or that could be raised in avoidance of liability, Avas that of self-defence. But no plea setting up such a defence had been filed, the defendant having gone to trial upon the general issue. There was an application made to amend in this respect at the trial, but it was refused by the trial judge, and no exception was taken to the ruling. • But even if there had been, the exception could not have availed, since the matter was Avithin the court’s discretion. Bruch v. Carter, 3 Vroom 554. In order to set up in such case the defence of son assault demesne, it must be pleade specially. 1 Chit. Pl. 501; 2 East 260, 274; Cowp. 18; 21 Encycl. Pl. & Pr.; Bruch v. Carter, supra; Carson v. Wilson, 6 Halst. 43. In the absence of such a plea the defence Avas rightly overruled. In this situation there was no error in the instruction complained of. The result is that the judgment below must be affirmed. [274] For affirmance — Ti-ie Chancellor, Chief Justice, Dixon, Garrison, Fort, Hendrickson, Pitney, Swayze, Bogert, Yredenburgh, Vroom, Green, Gray. 13. For reversal — None.