Oliverius v. Wicks

187 N.W. 73, 107 Neb. 821, 1922 Neb. LEXIS 183

• Court: Nebraska Supreme Court
• Decided: February 16, 1922
• Docket: No. 21848
• Status: Published

Opinion

Wakeley, District Judge.

Oliverius recovered a judgment against Wicks for $4,045.07 damages for an assault and battery. Wicks appeals. Appellee in Ms original petition prayed for judgment for $2,108. In a supplemental petition, setting forth injuries which had developed since the commencement of the action, appellee demanded judgment for the total amount of $7,937.80.

The first error assigned, asking the reversal of the judgment, is that the court erred in one of its instructions, viz., No. 5, the part thereof of which complaint is made being as follows: “You are further instructed upon the question of the burden of proof that the defendant, Robert G. Wicks, in his’ answer, as set out in instruction No. 2, admits the assault as charged against him, and seeks to justify this assault by a plea that the same was made in self-defense, * * * The burden is upon the defendant and it is for him to prove that defense by a preponderance of the evidence, as herein-above set out.”

The particular portion of the instruction which appellant claims is erroneous is that which states that the defendant, Robert G. Wicks, “admits the assault as charged against him.” Whether Wicks admitted the assault as charged depends, of course, upon the pleadings, to which, therefore, reference is made.

The plaintiff in his original and supplemental petition averred: “That on the 14th day of June, 1918, the defendant unlawfully made an assault upon the .plaintiff, and him, the said plaintiff, did then and 'there beat, wound, and ill-treat,” etc. The answer alleged: “That on the 14th day of June, 1918, the plaintiff assaulted the defendant, and whatever injuries he received was by reason of the necessary defense made by the defendant, and was received while the defendant was lawfully defending himself from said assault; that prior to the assault above set forth, the plaintiff had abused the defendant and attempted to provoke an assault, and had threatened to assault and beat the defendant, which threats had been prior to the assault aforesaid communicated to the defendant; that at the time of said assault, the defendant was lawfully upon the public street of the city of Burwell: and that he used only such force in repelling the assault as was apparently necessary, considering the violence of the assault and the threats which the plaintiff had before said assault made.” These allegations were followed by a general denial. Plaintiff’s reply was a general denial as to all allegations of the answer except such as admitted' the truth of plaintiff’s petition.

The question therefore is: Was the court right in giving the instruction that he did? That is, did the answer of the defendant admit the assault charged in the petition? We think it did. In the first place, it is pertinent to observe that it is the law of this state that, in civil actions for assault and battery, no evidence tending in any way to justify the assault and battery is admissible under a general denial. Barr v. Post, 56 Neb. 698; Mangold v. Oft, 63 Neb. 397. What is the effect when, as here, the defendant justifies the assault by pleading self-defense? In 5 C. J. 657, secs. 84, 85, in a discussion of the nature and effect of pleas in actions of this character, it is said: “A legal plea of justification must admit the battery as alleged.” And again: “A plea of son assault demesne (as is the plea here) admits the offense charged but seeks to avoid it on the ground of self-defense.”

In Le Fevre v. Crossan, 3 Boyce (Del.) 376, which was an action such as this, for assault and battery, the court said: “It is a principle of pleading that every justification pleaded must, expressly or tacitly, confess the act which it is intended to justify. And usually one may not plead in avoidance of a fact which the plea does not admit, for it is of the essence of such a plea to confess the truth of the allegation which it proposes to answer and avoid” — citing Gould, Pleading, sec. 111.

So in Pleasants v. Heard, 15 Ark. 405, it is said: “The plea of. son assault demesne is a special plea of justification. It confesses the battery alleged, but avoids and justifies .it on the grounds of self-defense.”

In Watson v. Hastings, 1 Pennewill (Del.) 47, it is said: “The plea of son assault demesne only admits the assault and trespass.”

And in Smith v. Wickard, 42 Ind. App. 508, the court say: “By a plea of son assault demesne the defendant justifies an assault and battery, by asserting that the plaintiff committed an assault upon him, and that he merely defended himself.”

In the light of these authorities, we think it must be held that the plea of justification, viz., self-defense, interposed by Wicks necessarily admitted the assault and battery. Throughout his evidence Wicks admitted beating the plaintiff, but endeavored to prove that the plaintiff was the aggressor.

The second point raised by appellant relates to the admission in evidence of' an excerpt from a standard medical work, “Warbassey on Surgical Treatment,” its reception coming about in the following way: As before stated, the plaintiff filed a supplemental petition. This set forth that some six months after the original injuries had been inflicted upon appellee complications and developments ensued, not apparent or existing at the time when the original petition was filed, which subsequently developed into appendicitis, necessitating the removal of the appellee to hospitals' in Omaha, and an .operation for appendicitis at considerable expense to the plaintiff, and attended with great pain, and long-continued suffering, and extreme nervousness, existing at the time of the trial.

The record discloses that appellant inflicted upon appellee grievous injuries, knocking him down with “something hard,” striking him a second time, rendering appellee unconscious, and, Avhen he regained consciousness, appellant Avas on top of him in the gutter, still pounding him and threatening to kill him; that he begged for mercy, and was heard tó say, “Oh, don’t!” or, “Oh, Bob!” that appellant finally got off appellee, who then Avent home groaning and moaning; he couldn’t Avalk very good; his garments Avere torn and covered Avith blood; his face cut to the bone in íavo or three places, and his lip cut through; that tAvo of his ribs Avere broken; that he could not sleep thereafter; that he Avas often dizzy; his limbs Avere numb; that because of the injuries to the abdominal'region he went to Omaha; was in the Nicholas Senn Hospital for seven or eight Aveeks in 1919; and after returning home was compelled to return to Omaha in April, 1920, and receive further medical and surgical treatment at the Wise Memorial Hospital. In February, 1919, Dr. Condon at the Nicholas Senn Hospital operated upon him for chronic appendicitis and removed his appendix.

The contention of appellee Avas that the appendicitis Avas the result of traumatism, that is, of a bloAV or bloAArs inflicted in the fight by appellant upon appellee. The contention of the appellant Avas that appendicitis could not be caused by traumatism, or a blow. Physicians and surgeons Avere called by each side to maintain its position. Dr. Smith, Avho attended appellee during his entire illness, testified that, in his opinion, the cause of the appendicitis Avas traumatism or a bloAV received in the appendical region at the time of the assault. He further stated that, folloAving the injuries to appellee and prior to his operation for appendicitis, trouble developed AAdth appellee’s abdomen; that he had climatic peritonitis, AAdiich Avas a condition of the peritoneum, evidenced by pain, blowing gas from the bowels, and a great deal of tenderness all over the abdomen, usually located in the center over the appendix, and appellee ■complained of this very much at certain times, and it kept on until the witness advised him to go to a hospital for an operation for appendicitis.

Dr. Condon, of the Nicholas Senn Hospital, who performed the operation for appellee’s appendicitis, testified that, in his opinion, the beating of the appellee on June 14, 1918, and the bruises inflicted upon him at that time over the region of the appendix, was the causative factor of the appendicitis.

.Dr. Britt attended and examined appellee once following his injuries, and was called out of the regular order, as a medical expert, on behalf of the appellant He testified on his direct examination that, so far as recognized by the medical profession, and by medical authorities, within his knowledge, appendicitis was never ■caused by a blow; that there had been no history of direct appendicitis from external violence. Upon his cross-examination he testified that he could not conceive of appendicitis being caused by a blow; that it might be possible, but that there was no history of such a case. “Q. There is no history of such a case? Then you mean by that, that if this plaintiff had appendicitis some six or seven months after the injury and was operated on in J anuary or February, after the injury in June, 3918, that such appendicitis could not have been caused by the injury? A. I think not. Q. It is your opinion that it could not have been? A. It is my opinion it could not have been. Q. Have you based that opinion on the fact that you say that appendicitis is not caused that way? A. We have no history of appendicitis in that way; might possibly be, but I doubt it.” The witness further stated that he was acquainted with a medical work, “Anders on the Practice of Medicine,” that he .had read the work, that he knew what Anders assigned as causes of appendicitis, and that in this connection Anders stated as follows: “It is not uncommon for excessive or uncommon exertion or a traumatism, or jarring of the body, as in jumping, to act as a favoring cause.” Although the witness also stated that the “traumatism” to which Anders referred was a traumatism of a different nature from that supposed to be in issue in the case at bar. The witness was then asked whether he was acquainted. with “Warbassey on Surgical Treatment,” a modern work published in 1919, and answered that he was not. This Avork was later identified by Dr. Smith, as a standard medical authority, and the following excerpt therefrom offered and received in evidence: “Traumatism to the appendical region should be avoided, as this is probably capable of acting as a causative agent.”

So that the question is: Was the ■ admission of this extract in evidence under the conditions surrounding its reception erroneous? Under the decision in Van Skike v. Potter, 53 Neb. 28, Ave must, of course, consider it settled in this state that medical books cannot be received as independent evidence of matters stated in them. But the question here is: Was the reception of this excerpt under the circumstances erroneous? We do not think so. Dr. Britt Avas called in behalf of the. defendant as a medical expert. He had upon direct examination stated that, so far as recognized by the medical profession, appendicitis Avas never caused by a blow; that there had been no history of direct appendicitis from external violence. Then, upon cross-examination, as above noted, he went somewhat out of his way to reiterate his statement that medical history furnished no example of appendicitis arising from a blow.- His attention was directed to Warbassey’s book, Avith Avhich he stated he Avas not familiar. This being the situation, and the book having been identified by Dr. Smith as a standard medical authority, the paragraph in question was admitted upon rebuttal.

It Avas not in any sense admitted as independent evidence to prove substantively the matter therein recorded, but to discredit or disprove the statements reiterated by Dr. Britt that in the medical profession there had been no history of appendicitis as the result of a blow. It was, we think, competent, as in the nature of impeaching testimony,. and to show the jury that Dr. Britt was mistaken in his positive assertions. We think this the logic of Van Skike v. Potter, supra, where the court say (p. 41) : “They (medical books) were not offered for the purpose of fortifying an opinion which had been expressed by an expert upon the witness-stand, and whose opinion was predicated upon the text book-offered, nor were they offered for the, purpose of showing that they contradicted the opinion. expressed by such expert. But they were offered as independent evidence to sustain the plaintiff’s contention.” Dr. Britt’s assertion had been, there was no recorded history of such a case; the book showed there was, and we think it was competent, as is strongly intimated in the language just quoted.

Pinney v. Cahill, 48 Mich. 584, was an action for damages against the defendant, Avhose ill-usage and neglect, it was claimed, caused the death of the plaintiff’s horse. Graves, O.J., in rendering the opinion of the court said:

“The plaintiff produced a witness who swore that he was a veterinary surgeon of twenty-five years’ standing, and his opinion as an expert being called for he SAVore that in his opinion the horse died from being overfed Avhen too hot, which would produce colic. On cross-examination, he said that colic was caused by over-driving and feeding when the animal is too warm; that all works of good authority spoke of it, and that the 'Modern Horse Doctor, by Dr. Dodd,’ Avas a work of that kind. The defendant then offered to show from this Avork of Dr. Dodd, where the author treats of colic, the passage following: 'In nine cases out of ten colic is the result of impaired digestive organs; the food runs into fermentation and evolves carbonic acid gas.’ This evidence was offered to discredit this expert in connection with his cross-examination. The plaintiff objected to its introduction, but the court admitted it.

“The rule is acknowledged in this state that medical books are not admissible as a. substantive medium of proof of the facts they set forth. But the matter in question was not adduced with any such view. The witness assumed to be a person versed in veterinary science; to be familiar with the best books which treat of it and, among others, with the work of Dodd. He professed himself qualified to give an opinion to the jury from the witness-stand on the ailment of the plaintiff’s horse and its cause, and the drift of his answer was to connect the defendant with that ailment. He borrowed credit for the accuracy of his statement by referring his learning to the. books before mentioned and by implying that he echoed the standard authorities like Dodd. Under the circumstances it was not improper to resort to the book,- not to prove the facts it contained, but to disprove the statement of the witness and enable the jury to see' that the book did not contain what he ascribed to it. The final purpose was to disparage the opinion of the witness and hinder the jury from being imposed on by a false light. The case is a clear exception to the rule which forbids the reading of books of inductive science as affirmative evidence of the facts treated of.”

City of Ripon v. Bittel, 30 Wis. 614, was' an action for damages for injuries sustained by reason of a defective sidewalk. It was objected that the court erred in admitting in evidence certain treatises on surgery which were offered by the attorneys for the plaintiff. The court said: “The record does not inform us what the purpose or object of the offer of the treatises was. Counsel suggests that it may have been to expose or discredit the medical witnesses, examined as experts, who, founding their opinions upon the same treatises, recognized as standard authority, had testified that the books laid down such and such particular propositions or theories, or such and such particular conclusions, when in truth and in fact the books did not do so and the witnesses were mistaken. Counsel asks if, under such circumstances, the books would not be admissible as in the nature of impeaching evidence, or to show that the experts were in error. We cannot say that the admission would be improper, and so must overrule the objection.” It is also contended the judgment should be reversed because the court in instruction No. 10 permitted the jury to consider, as an element of damages, medical and surgical services and hospital bills which the plaintiff had paid or become liable for. The record discloses no evidence touching the fair and reasonable value of the physicians’ services, or of the value of the board, attendance, etc., furnished by the Nicholas Senn and Wise Memorial Hospitals, in which appellee was for a long time following his injuries, and in one of which, the Nicholas Senn, the operation for appendicitis was performed. These expenses aggregated, according to appellee, $191.50. He testified entirely from memory and with some uncertainty. He produced no receipted bills. No physician testified as to the value of services rendered by him. No one connected with either hospital testified as to the amount paid by appellee, or as to the reasonable value of its services to or attendance upon him; the only evidence as to these disbursements being that appellee paid the Nicholas Senn Hospital $175, and the Wise Memorial Hospital $109, for the privileges of the same. Service such as these áre of a peculiar kind, and we do not think the jury could, without the aid of testimony, have formed a reliable opinion as to their value. The case at bar, therefore, does not fall within the category of those pressed upon us by counsel for appellee, where the testimony disclosed the nature, extent and details of the services rendered, the number of physician’s visits, etc., constituting a basis upon which the court has in some cases permitted the jury to assess a value. The judgment, however, should not be reversed for this error, if appellee is willing to submit to a remittitur in the sum of $491.50.

The final error assigned is that the jury included interest in its verdict. The verdict ivas: “We, the jury duly impaneled and sworn in the above entitled cause, do find for the plaintiff, Gotlieb Oliverius, and fix his damages at $4,075.70, with interest included, J. H. Webb, Foreman.” When we bear in mind that this particular form of verdict was given by the court along with his instruction No. 16 as a form approved by him, in the event the jury found for the plaintiff, we agree with counsel that this simply meant the plaintiff was to have judgment, for the amount found due (to be inserted in the space left blank), and that nothing was to be added for interest to that time.

If, therefore, the appellee shall, within 20 days from this date, file in this court a remittitur for $491.50 from the judgment recovered, then said judgment shall be, and, in that event, is affirmed. If said remittitur• be not so filed, then said judgment shall be reversed and the cause remanded for a new trial.

Affirmed on condition.