Jones v. Lewis

The action, was one for damages on account of an assault and battery. The complaint alleges that the ‘ ‘ defendant violently and maliciously assaulted the plaintiff with a hammer and striking plaintiff upon the arm and upon the face with said hammer, bruising and wounding plaintiff, and more particularly crushing in and fracturing the plaintiff’s cheek-bone under and to the left of the plaintiff’s left eye.” The answer admitted the striking as alleged, but undertakes to justify the same upon the ground of self-defense. The case was tried by the court. It was found that on the date mentioned an altercation arose between plaintiff and defendant, during which defendant struck plaintiff, as alleged in the complaint; that the injuries are permanent in their character; that the act of striking plaintiff was not done in self-defense, or to protect defendant in person or property. Judgment was accordingly rendered in plaintiff’s favor for $1,000, which was, by consent, at the hearing of the motion for a new trial, reduced to $750.

We see no merit in appellant’s contention that the complaint was insufficient. The assault, the means employed and the character thereof are fully set forth. There is contained in the complaint a statement of facts constituting a cause of action in ordinary language (Code Civ. Proc., sec. 426), and no error intervened in the overruling of the general demurrer. Further, the assault was admitted by the answer. The justification claimed was by the court found not to exist. The assault being admitted and found by the court, a resultant injury followed sufficient to justify the amount of the judgment. The acts of defendant were willful, by reason of which he is responsible for the injury. (Civ. Code, sec. 1714.) The record discloses no assessment of damages on account of malice, and a compensatory amount is not affected by a failure to find malice. The findings of fact and conclusions of law are separately stated, and the criticism in that regard is unwarranted. We see no error in the action of the court refusing a continuance ; the record establishes the propriety of such order. While the court announced its decision, or, more properly speaking, the impressions produced upon the mind of the court by the evidence, before an opportunity was afforded counsel for argument, .nevertheless, when its attention was called to .1pie-faert by defendant's "counsel, the' court said that it had merely

Appellant contends that the court erred in denying a new trial upon the ground of newly discovered evidence made to appear by affidavits in that regard. We see nothing in the affidavits which may be said to show newly discovered testimony. It is claimed therein that counsel for the defense had no knowledge of the extent of the injuries, and was, therefore, unable to present evidence in relation thereto, but an examination of the complaint shows that the defense was fully and completely apprised of the extent and character of the injuries complained of. The matter of granting a new trial upon the ground of newly discovered evidence is with the trial court, and it is for that court to say whether or not the proffered evidence is such as would affect the decision of the court if introduced. The court in this instance determined that it would not.

We see no error in the record, and the judgment and order are affirmed.

J ames, J., and Shaw, J., concurred.