
    No. 419
    MARES v. BRANDT
    Ohio Appeals, 9th Dist., Cuyahoga County
    No. 4327.
    April 26, 1923.
    This opinion has not been published except in Abstract.
    ASSAULT AND BATTERY — (1) Verdict against manifest weight of evidence reversed — (2) Definition of malice as “wrongful act” is error — (3) Malice must be shown to allow recovery of attorney’s fees in damages.
    Error to Cuyahoga Common Picas;
    reversed
    Attorneys — Zmunt, Mayer & Stephens, and Paul Howland, for Mares; Mooney, McCormack & Roth, for Brandt.
   MIDDLETON, P. J.:

Middleton, P. J., Mauck arid Sayre, JJ., 4th District, sitting.

Epitomized Opinion

In an action for assault and battery, Mrs. Brandt recovered. $7,000’ in damages and the case comes to this Court on error. Brandt did not bring the action for assault and battery until almost a year after the difficulty with Mares, and/during that time brought an action for slander; alleged to have been committéd at the same time. There was evidence to' support the theory advanced by each of the parties to, thé dispute, but the evidence as to the damage resulting to Brandt consisted chiefly of a physician’s report of her physical condition more than 17 months after the alleged assault. Held by Court of Appeals in reversing judgment for Brandt:

1. The verdict is against the manifest weight of the evidence.

2. The definition given by the lower court of malice as “a wrongful act committed upon another without just cause or excuse” was misleading. Malice is the state of mind or mental condition which prompts the intentional doing of a wrongful act without cause.

3. The instruction by the lower court that the jury might include a reasonable attorney’s fee in case they decided to award punitive damages, was in direct conflict with 81 O. S. 204. Such fees may be allowed when the act complained of was a malicious one.  