Hindy v. Avedisian

339 Mich. 616 (1954)

64 N.W.2d 676

HINDY v. AVEDISIAN.

Docket No. 64, Calendar No. 46,123.

Supreme Court of Michigan.

Decided June 7, 1954.

Stanton, Sempliner, Dewey & Knight (Frederick G. Dewey, of counsel), for plaintiff.

Daniel P. Cassidy, for defendant.

DETHMERS, J.

Defendant appeals from a judgment for $850 plus costs, entered against him in the common pleas court for the city of Detroit and affirmed, on appeal, in the Wayne county circuit court in a civil suit for assault and battery.

Defendant claims error in the trial court's failure to enter judgment for him on the ground that defendant's answer had set up self-defense as an "affirmative defense" and plaintiff failed to file a reply. Plaintiff's declaration alleged, however, that defendant struck plaintiff "without cause or justification of any kind." That sufficiently traversed defendant's claim of self-defense and framed an issue on that disputed question of fact, making the filing of a reply to the same effect idle. This assignment of error is not well taken.

*618 Defendant's next contentions go to the clear preponderance of the evidence on the question of whether defendant was guilty of an unprovoked assault and battery or acted justifiably in self-defense. Defendant testified that before he struck plaintiff the latter pushed him. Plaintiff's version was otherwise. The testimony was in conflict. The circuit judge correctly held that the testimony did not clearly preponderate against the finding of the common pleas court and stated that, had he heard the case de novo, he would unhesitatingly have found the same way. Suffice it to say, in this connection, that we do not agree with defendant that what the plaintiff described and the trial court found to be a peaceful extending of hands by plaintiff, with palms down and fingers extended, in an effort to placate defendant, even though plaintiff may have touched defendant's arms in so doing, presented a situation justifying defendant, as a matter of law, in striking plaintiff in claimed self-defense.

Pointing to comments of the trial judge in colloquy between court and counsel, defendant complains that the court erroneously took judicial notice of certain claimed facts. They were not essential to the trial court's decision, which was in accord with the clear preponderance of the admissible evidence received. Hence, the error, if any, was not reversible.

Finally, defendant says that the judgment was grossly excessive and points, in particular, to the fact that part of plaintiff's claim for damages consisted of loss of earnings for 2 weeks, but that, as a foundation therefor, plaintiff testified to his hourly wage rate at the time of trial rather than at the time when the disability occurred. It is evident, however, from the statements of the trial judge, that he allowed for loss of earnings for only 1 week instead of the 2 actually involved. Plaintiff's hospital and doctor bills resulting from the battery totalled $545.75. *619 The court allowed these, together with $79.25 for loss of earnings. The balance of the judgment, namely, $225, apparently was allowed for pain and suffering attending a fractured cheekbone, which was depressed more than half an inch as the result of the blow, and injury to the eye socket. The judgment was not excessive.

In accord with plaintiff's motion filed in this Court the judgment for plaintiff may be entered against both defendant and the sureties on his appeal bond as provided in CL 1948, § 622.5 (Stat Ann § 27.1436).

Affirmed, with costs to plaintiff.

BUTZEL, C.J., and CARR, BUSHNELL, SHARPE, BOYLES, REID, and KELLY, JJ., concurred.