PLEADING — ASSAULT AND BATTERY — VERDICT.

[Cuyahoga Circuit Court,

January 29, 1898.]

Hale, Marvin and Caldwell, JJ.

#### Wm. H. Hudson et al. v. Ferdinand Voigt.

1. Failure of Plaintiff to file a Reply is not to his Prejudice.

In an action for damages, for injuries received from an assault and battery in. flicted by a constable while regaining possession of certain property, without first serving the writ of replevin, the defendant, as one of his defenses, sets up a plea of justification, to which defense there was no reply: *Held,*that al chough the better practice is to reply to a defense of this kind, yet there is no prejudice to plaintiff resulting from the omission of such reply.

2. Whoever Aids in an Assault is Equally G-uilty.

In such action it is not reversible error for the court to charge in substance, that, “ whoever aids in an assault is equally guilty with the party who does the beating.”

3. Rules as to Disturbing a Verdict on the Ground that it is Against the Weight of the Evidence.

Where the evidence in a case is of such a character that the jury might have decided the case either way, and the jury returns a verdict in favor <jf the plaintiff, which was sanctioned by the trial court, the reviewing court will not disturb such verdict on the ground that it is against the weight of the evidence. The rule is very well settled in this state, that it must be very clearly against the weight of the evidence to authorize the reviewing court to disturb the verdict.

On Error to the Court of Common Pleas.

Hade, J.

The case of Wm. H. Hudson and others against Ferdinand Voigt comes here on error to the court of common pleas. Several exceptions are made upon* the record.

The action was brought by Voigt, defendant in error, against the plaintiffs in error, to recover damages for an injury he (Voigt)_had received from an assault and battery, inflicted upon him by the plaintiffs in error, as he alleged.

The first defense was a general denial.

The second was a plea of justification; that the plaintiffs in error were first assaulted by Voigt and used only such force as was necessary to repel that assault.

There was no reply to this defense. The case went to trial. _ Evidence was adduced on both sides, as to the transaction, — all the evidence that could possibly have been introduced., had there been a reply.

*36The charge of the court dealt with that question precisely as if there had been a reply, and, so far as we are able to ascertain from the record, no objection was made to the submission of that question to the jury because of the fact that there was no reply.

Now conceding that a reply would have been better, and perhaps essential, we see no prejudice to the plaintiffs in error by reason of the omission of a reply.

The whole case was tried and dealt with by court and jury precisely as it would have been, had such a reply been filed.

In the charge, the court told the jury they might allow as part ot the compensatory damages, a reasonable attorney fee, although no evidence had been offered upon the subject of the value of those attorney fees. Such evidence has been held by the Supreme Court to be incompetent, and clearly this case belongs to that class of cases under which the jury might in its discretion include in their award of damages a reasonable attorney fee to counsel representing the plaintiff in the case; and while the charge was very meager upon that point although very profuse generally and prolix, we are satisfied that the jury was not authorized, under that charge, to go any further in the assessment of the damages than the law would authorize. No request was made to make it more definite and certain, and we are inclined to hold there was no prejudice to the plaintiff in error by reason of that charge.

Complaint is made that in the charge also the court states that not only the persons who did the beating but those who aided by word of mouth and encouraged the commission of the act, would be responsible. Exception is taken to the manner in which that is stated. We suppose it means no more than if the court had said to the jury, “Whoever aids in an assault is equally guilty with the party who does the beating.” We see no good reason for disturbing the verdict on that ground.

Coming to the facts of the case, it seems that the defendant in error had loaned to one of the plaintiffs in error, Richards, the sum of one hundred and fifty dollars ($150.00). To secure its payment, he (Voigt) had taken a note of the daughter of Richards, Martha Richards, for the sum of one hundred and fifty dollars ($150.00) and a chattel mortgage upon certain property, said mortgage being executed by the daughter. The note became due.

The note became due, and Voigt took possession of the property covered by chattel mortgage, and removed it to his own home. In the evening of the day on which the property was removed by Voigt, J. G. Richards and his son, and Hudson (who was a constable) and his son went to the house of Voigt — the business place of Voigt— for the purpose of reclaiming the property. Prior to that visit, a suit of replevin had been commenced, and Hudson, the constable, had a writ of replevin in his possession. He was under instructions, as it appears, from this bill of exceptions, to obtain the property if he could do so, without serving the papers; that is, he was to get the property if he could, and not use his writ.

In the transaction at the house, either in serving the writ or in obtaining the property or in an endeavor to obtain the property, Voigt was very severely handled, quite badly bruised and landed in the county jail by Hudson.

Now, if the evidence of the defendants, the plaintiffs in error, was the true history of that transaction, this judgment is decidedly wrong because it could be inferred from the testimony that while Hudson was *37attempting to serve his writ of replevin, he was met by a revolver, and in taking care of himself, as against the assault of Voigt, inflicted the injury complained of. But the testimony on the part of Voigt shows that there was no attempt there to serve the writ of replevin, but Richards and this man Hudson were acting under instructions to obtain the property if they could without serving the writ and that they were acting simply and solely in the capacity of private individuals up to the time of this assault; and if the true history of the transaction is given, by Voigt and his wife, and those who testified in his behalf, then there was no justification for this beating of Voigt by Hudson and those who were with him.

Hessenmuller & Bemis, attorneys for plaintiffs in error.

E. C. Schwan, attorney for defendant in error.

Now this was a question of fact submitted to the jury. There was evidence in the case, from which the jury might have decided the case either way, either for or against Voigt, — for or against the plaintiffs in error. It was left to the jury as to which they would believe. They found in favor of Voigt, and that was sanctioned by the trial court.

Under the rule that pertains in this state, we would not feel justified in this conflict of testimony, in disturbing this verdict.

The rule is very well settled in this state, that a verdict must be very clearly against the weight of the evidence to authorize a reviewing court to disturb it for that reason.

Finding no error upon this record the judgment of the court of common pleas is affirmed.