Gifford v. Warren , 5 Ohio Law. Abs. 683 ( 1926 )

PER CURIAM.

This was an action for assault and battery prosecuted by’Charles Gifford against George Warren. A verdict was returned in favor of Warren.

The evidence disclosed that the alleged assault was made; after plaintiff applied force upon the body of the defendant in attempting to evict him from plaintiff’s premises.

Defendant was plaintiff’s father-in-law and, as such, was an implied invitee to visit plaintiff’s premises. There was no justification for the plaintiff acting as he did, and defendant, in repelling the assault made upon him by the plaintiff, acted in defense of his person.

It is claimed that the Court erred in refusing to admit evidence of special damages. This is without foundation. “In an action for damages on account of assault and battery, it is error to admit evidence as to the permanency of the injuries received or the impairment of earning capacity where these grounds of damages were not specially pleaded.” Society v. Helman, 14 C.C. (N.S.) 522.

The jury finding that there was no liability whatsoever, on part of the defendant, refusal of the court to admit evidence of special damages could not possibly be held to be prejudicial to plaintiff.

(Levine, PJ., Sullivan and Vickery, JJ., concur.)