Surman v. Terrell , 1923 Ohio Misc. LEXIS 1651 ( 1923 )

FUNK, P. J.

Epitomized Opinion

■Surman sued Terrell for $5,000 damages for assault and battery. The petition alleged that defendant struck plaintiff in the face in the presence of a large number of persons and that he was greatly injured and humiliated thereby. During the trial the defendant was permitted to show misconduct on the part of the plaintiff while passing defendant’s residence on the day following the alleged assault and battery. As the trial,.resulted in a verdict for the defendant, plaintiff prosecuted error. In reversing the judgment of the lower court, the Court of Appeals held:

1. That the court committed error in admitting evidence showing the conduct of plaintiff in making a discourteous remark in a loud voice when passing the residence, of the defendant on the day following the alleged assault and battery, and this fact was in nowqy connected with the assault.

2. -While evidence as to defendant’s; declaration c conduct soon after the act complained of may t competent to show malice, yet evidence is not ac missible showing the conduct of defendant on a occasion different .than the one at issue.

3. The verdict was manifestly against the weigl of evidence.

4. Errors in the court’s charge could not be cor sidered by a reviewing court unless there was a exception taken to the charge.