28 Ind. App. 206 | Ind. Ct. App. | 1901
Action by appellee, by next friend, for damages for alleged personal injuries resulting from an assult and battery committed by appellant. Complaint in one paragraph, answer in denial. Trial by jury and verdict for appellee. Motion for a new trial and in arrest of judgment overruled.
The complaint avers that appellee is thirteen years old and has always lived with her father; that appellant is her stepmother and was married to her father about eighteen months prior to the time appellee received the injuries complained of; that a few months after the occurrence of the injuries, appellee’s father and stepmother ceased to live together and have been living apart ever since; that about six months after the marriage and for about a year previous to the injuries appellant treated appellee cruelly and inhumanly, frequently striking and beating her; that appellee performed her duties as a child toward her stepmother as best she knew how, and was dutiful and kind to her; that, before injured, appellee was a strong, healthy girl, had good eyesight, attended public school and helped her father and stepmother with the work about the home; “that on the — day of April, 1897, the defendant became angered and enraged at the plaintiff, without any faqlt of the plaintiff and without any cause, angrily and maliciously seized the plaintiff and grasped her with her hands on each side of plaintiff’s head, by plaintiff’s ears, while standing in front of her and with anger rudely and with great force jammed her head back against a brick wall, and repeatedly five or six times -struck the back of plaintiff’s head with great force against said brick wall; that the plaintiff while thus receiving said
The sufficiency of the complaint is questioned for the first
We quite agree with appellant’s counsel that courts should hesitate to invade the privacy of the home, or to question that mutual confidence which should obtain in the household. But this privacy and mutual confidence should
Under the motion for a new trial it is argued that certain competent evidence was excluded, and incompetent evidence admitted; that certain instructions were improperly given and that certain others tendered were improperly refused. Only such objections to the admission of evidence as are made to the trial court will be considered on appeal.
The father of appellee testified that two of his daughters came home in the afternoon of the day of the alleged assault and battery. Tie was asked if he informed these daughters of the injury or trouble, and over appellant’s objection, he answered that he did. The witness did not state anything* he told the daughters. This evidence was competent as tending to fix the time the daughters came home, and the time of the trouble. We fail to see how the simple statement that he did inform them could harm appellant. While appellee was testifying she stated that her sisters came home that day, and was asked whether they were told by her or her father as to what had occurred, and without objection, she answered that they were. One of the sisters
A brother of appellee testified that in August 1897, appellee “was complaining at that time of not feeling good.” A motion to strike out was.made that “it is not evidence as to present pain.” A sister of appellee testified that in June 1897 appellee “was not feeling well at all, she was always complaining.” A motion was made to strike out because the answer is the expression of the opinion of the witness without stating the facts upon which it is based, and that it was not a statement or expression of present pain. The record does not show that any objection was made to either the questions or the answers in the above, and, the answers being pertinent and responsive to the questions, it has been held that the objection by motion to strike out comes too late. Brown v. Owen, 94 Ind. 31; Cleveland, etc., R. Co. v. Wynant, 134 Ind. 681; Storms v. Lemon, 7 Ind. App. 435; Lake Shore, etc., R. Co. v. McIntosh, 140 Ind. 261; Taylor v. McGrath, 9 Ind. App. 30.
A witness, who was the playmate and schoolmate of appellee, lived near, and saw her nearly every day, was asked what complaint, if any, appellee ever made of any suffering at the time appellee was talking to witness, at any of the times during the past two years. Objection was made that the question asked for the opinion of the witness and not for what was stated by appellee or the expression of appellee as to present pain. The objection was overruled and the witness answered that “she complained about her head, that she was not feeling well.” A motion to strike out the answer because it is an opinion and did not state what appellee said as to present pain was overruled.
The words, what complaint, used in the question, were
Complaint is made of the refusal of the court to permit two witnesses to testify that appellant’s general reputation for peace and quiet was good. ' There was no error in excluding this testimony. Gebhart v. Burkett, 57 Ind. 378, 26 Am. Rep. 61; Elliott v. Russell, 92 Ind. 526; Sturgeon v. Sturgeon, 4 Ind. App. 232.
The court excluded certain offered testimony of a witness to the effect that it was the general repute in the neighborhood that the weakness of appellee’s eyes was caused from measles; also by the same witness that appellee’s mother had told witness that appellee’s eyes rvere weak from measles; also the offered testimony of a witness that appellee’s mother told witness in the presence of appellee, then two years old, that appellee had the measles and that it had caused her eyes to become weak. As to part of this offered testimony, counsel for appellant have given no sufficient reason why it should be excepted from the general rule excluding hearsay evidence. What appellee’s mother told the witnesses was certainly properly excluded.
It is true that hearsay evidence is admissible in certain
A witness, appellant’s son, lived with the family after his mother’s marriage and until she and her husband separated. He took his meals and slept there. He was asked by appellant’s counsel, what, if anything, he had heard said in the family between April and September, 1897, about his mother having trouble with appellee and striking her head against the brick wall; and what, if anything, he had heard said during the same period by any member of the family, in the presence of appellee, with reference to the same matter; and also if he had ever heard the matter of his mother’s striking appellee’s head against the brick wall discussed by the family. He was also asked what, if anything, he ever heard appellee say about appellant taking her by the ears and beating her head against the brick wall. Objections to these several questions having been sustained, appellant offered to prove by the witness that nothing was said by any one at any time about any of the matters inquired about in the questions.
These questions are not directed to the testimony introduced by appellee as to her complaints of sickness or suffering. The questions and the offers to prove show this. Nor do they present the question that the silence of a .party, where facts are asserted in his presence, may 'be shown ■against him if the facts or circumstances are such that he is required to speak. There was nothing obligatory upon appellee to discuss the fact of the trouble between herself and her stepmother with the witness, or with other persons in his presence. Counsel in their .brief say, “The question was the non-existence of the facts testified to by witnesses for appellee, and naturally called for testimony of a negative character.” All the questions, except the last, were as "to
Complaint is made of the court’s refusal, upon request, to instruct the jury to the effect that if, at the time of the injuries, appellee was a minor and lived in the house with her
As the complaint discloses the relation of parent and child it was necessary that it should show that the punishment inflicted was unreasonable and excessive, because, with that relation disclosed the infliction of reasonable punishment could not be actionable. To this complaint appellant filed only the general denial. Counsel for appellee argue that the instructions were not proper because appellant had not pleaded the relation of parent and child in justification. But it is unnecessary to decide whether such a plea is necessary where the complaint itself discloses the relation, because in this case there is no evidence making the instructions applicable. Appellant in her testimony does not claim that she punished the child in a proper manner, but she positively denies having inflicted any punishment whatever upon appellee. Instead of the evidence on her part showing or tending to show that she punished the child, as a parent has the right to do, she denies that any punishment whatever was inflicted.
Appellant requested the following instruction: “If you find from the evidence that the plaintiff was diseased at and before the punishment complained of, and that her present condition is attributable to such former diseased condition, and not in any manner or part attributable to such punishment, then you must find for the defendant. If you find that the plaintiff was diseased at and before the punishment she received, if any, but that by the punishment her disease has been aggravated or intensified, then you will give her damages for just such injuries as she has sustained which were the result of the punishment.”
The court modified this instruction by omitting the first sentence and giving it as modified. Appellant was entitled to the instruction as requested. Louisville, etc., Co. v.
It is also argued that as the court undertook to instruct the jury as to the quantum of proof required to sustain appellee’s complaint, it should, as a part of the instructions, also have instructed the jury upon the presumption of appellant’s innocence, so that the jury might weigh this in connection with the other proof, in determining the preponderance. In the instructions given the court correctly enumerated the elements in appellee’s case which must be' shown by a preponderance of the evidence, and that if .the' jury found that any on¿ of these elements had not been established by a preponderance of the evidence their verdict should be for appellant. In the instructions given no mention is made of the presumption of appellant’s innocence, and no instruction upon that question was requested by appellant. The instructions given were sufficient as against a party not asking further instruction. Spurlin v. State ex rel., 20 Ind. App. 342.
The eighth instruction given by the court reads: “Some evidence has been introduced for-the purpose of impeaching the testimony of certain witnesses who have testified before you, by attempting to show that such witnesses have made statements out of court in conflict with their testimony in this case. The court instructs you that a witness may be impeached in this manner, but as to whether.any witness in this case has been successfully impeached in this mode, and if he has been so impeached, the extent to which this has
It is argued, as the parties to the suit were among the witnesses against whom evidence was introduced to show that they had made statements out of court in conflict with their testimony, that as to appellee the effect of the instruction was to limit proof of such statements made by her to the sole purpose of impeachment.
It is true that statements made by a party out of court in contradiction of statements made as a witness are competent as original evidence; but the instruction in question does not designate any witness or class of witnesses, but applies to all on both sides affected by it. It seems that a jury of average intelligence must have understood that thiá instruction was intended to inform them as to the law on the subject of the impeachment of witnesses and for that purpose only. See, Lynch v. Bates, 139 Ind. 206; Smith v. State, 142 Ind. 288.
Instruction four and one-half given by the court is almost identical with an instruction approved in Lynch v. Bates, 139 Ind. 206, 209. The instruction here uses the word “may” instead of “should”, as was suggested in the above case.
Complaint is made of the eleventh instruction: “A person’s reputation for truth is made by what his neighbors generally say of him in this regard. If they generally say he is untruthful, that makes his general reputation for truth bad. Upon the other hand, if a man’s neighbors say nothing whatever about him as to his truthfulness, that fact of itself is evidence that his general reputation for truth is good.” It is argued that the last clause of this instruction invades the province of the jury. But it is unnecessary to argue the question, as this same instruction was approved in the case of Davis v. Foster, 68 Ind. 238. See, also, Conrad v. State, 132 Ind. 254.
The third and fourth assignments of error are: “3. The
The ground, here in question, for a new trial was misconduct of the jury in making a quotient verdict. In support of this appellant filed her affidavit and a day was fixed for hearing. Upon the day fixed appellee objected to proceeding with the hearing in the absence of appellant and filed certain affidavits and introduced certain oral testimony tending to show efforts made to secure appellant’s attendance. The court postponed the hearing and fixed the day for hearing five days thereafter and entered an order that appellant appear on that day to be examined touching the matters set forth in her affidavit. Afterwards, on the day fixed, appellant failing to appear, her attorneys offered to file the affidavit of William R. Wood, one of appellant’s attorneys, in explanation of appellant’s absence and also in further support of the ground for a new trial. Objection was made to filing this affidavit which was sustained. Upon appellee’s motion appellant’s affidavit in support of the motion for a new trial was then stricken out, and the motion for a new trial overruled.
Counsel have discussed at some length the rulings of the court in refusing to allow appellant to file the affidavit of Mr. Wood, and in striking out appellant’s affidavit. But under the rule declared by the Supreme Court, it is unnecessary to enter upon a discussion of these questions, because, if appellant’s affidavit had remained on file and the affidavit of Mr. Wood had been filed, the result must have been the same. The misconduct of the jury charged, is misconduct of the jury while in the jury room. The affi
Judgment affirmed.