Bates v. Loomis

5 Wend. 134

Opinion

By the Court,

Marcy, J.

A default in a case like this admits an assault and battery; but it does not, I apprehend, entitle the plaintiff to any thing more than nominal damages. It admits only the traversable allegations in the declaration. Neither the specific day when the injury was done, nor the circumstances of aggravation are traversable. They are not therefore admitted by the default. A plea in this case denying a battery on the second day of January, (that being the day laid in the declaration,) would have been clearly bad, because the plaintiff, to entitle him to recover, is not confined in his proof to a battery on that day. The admission by the default is of a battery committed within the period to which the plaintiff is confined by his proof. The battery may have been on the second day of January, but not necessarily so. It may as well have been on any other day in any of the three or four preceding years. If the plaintiff received on that day a personal injury, the default does not establish the fact, in the absence of all other proof, that the defendant inflicted it. Before damages can be awarded against him for it, the plaintiff must shew, either by direct proof or by circumstances, sufficient to produce a reasonable conviction in the minds of the jury that the defendant inflicted the injury.