
    LEGGETT, Respondent, v. DINNEEN, Appellant.
    (167 N. W. 235.)
    (File No. 4238.
    Opinion filed April 12, 1918.)
    1. Evidence — Weapon, Identity of — Resemblance to One Used— Competency.
    In a suit for assault and battery, a club or billy, first seen lying at 'defendant’s feet when he was trying to help plaintiff up from the sidewalk after an altercation over plaintiff’s request for a night’s lodging in defendant’s hotel, was sufficiently identified to justify -its admission in evidence, although no witness testified positively to even having seen defendant have it in hand or in his possession; plaintiff having testified that defendant had at the time a similar weapon, and that it sembled the weapon with which defendant struck him, another witness testifying it resembled a weapon he had seen in a saloon previously conducted by defendant.
    2. Pleadings — Action for Malicious Assault — Amendment at dose of Testimony, to Cover Arrest and Bail Statute — Judicial Discretion.
    In a suit for damages resulting from personal injury to plaintiff through malicious assault by defendant, held, that it was within discretion of trial court to permit complaint to be amended at close of all testimony, by adding an allegation bringing the case within -provisions of Code Civ. Proc., Sec. 157, known as arrest and 'bail statute; such allowance being justified under Sec. 150, authorizing amendments in furtherance of justice, or to make pleadings conform to facts proved.
    3. Trials — Instruction—Assault and Battery — Expenses as Damages — Withdrawal of Instruction Not Supported by Evidence— Prejudice.
    Where, in a suit for assault and battery, trial court, in absence of any evidence of expenses incurred, at first instructed that jury might consider plaintiff’s expenses, if any, and thereafter, court’s attention being drawn to such instruction, jury was then instructed before they retired, that if there were no expenses they should find nothing for expenses, held, that no prejudice resulted from the instructions; it not appearing that more than nominal damages were recovered.
    4. Trials — Instructions—Malicious Assaults — Punitive Damages, Instruction, Based on Preponderance of Evidence — Plaintiff’s Supporting Testimony — Question for Jury — Evidence, Sufficiency, re Damages.
    An instruction, in a suit for assault and battery, that- if jury find by preponderance c-f evidence that defendant was actuated by ill will toward plaintiff, and that the assault, if any, was malicious, ‘such damages by way of punishment might be awarded as jury might deem proper under evidence, was proper; since, if plaintiff’s testimony was true — a question for jury — defendant not only assaulted plaintiff needlessly, but maliciously, and in wanton and brutal manner. Held, further, that the verdict for plaintiff is warranted by the evidence.
    Bouck, Judge.
    Appeal from Ciflduit Court, Day County. Hon. Thomas D.
    
      Action- by Albert Leggett, against Frank Dlitoeen, to recover damages for assault and battery. From' a judgment for plaintiff, anld from an order denying a new trial, defendant -appeals.
    Affirmed.
    
      Lewis W. Bicknell, and L. W. Crofoot, for Appellant.
    
      Howard Babcock, and) C. A. Wells, for Respondlent.
    (4) To point four ;oif the opinion, Appellant cited: 13 Cyc. 112.
   POLLEY, J.

This action is 'brought for the recovery of damages -caused by an alleged! -assault and battery. Verdict and judgment were for plaintiff, and diefendlaint appeals.

Appellant is the proprietor of a hotel (at Andover. Respondent wie-nt into appellant’s hotel and asked for a night’s lodging. Appellant refused! to keep respondent, and told him to get out. Just what itolok place immediately thereafter is in dispute. Respondent testified that appellant came out from behind' his desk, put his hand on respondent’s shoulder, and' they both walked towards the dolor; that appellant applied profane and abusive language to respondent; that, after they got outside the door and onto die porch in front of ittoe hotel, appellant struck respondent twice on the head with a weapon of some kind ; that said bl'awls rendered! him insensible; ¡and ¡that the-knew nothing after the second1 blow until he was being helped up from the sidewalk by other parties. Appellant testified that, when- respondent came into the hotel, be was dirty and filthy, and in a state of beastly intoxication; that he was using profane .and indecent language; that he refused tor leave the hotel' when he was- tO-ldl to go; that it was necessary to eject -respondent by force; that, as appellant forced respondlent through ¡the dloor, he staggered across the porch and stumbled down the steps to the sidewalk; and that any injury he may have suffered was occasioned! by such fall. It is not disputed!, however, that respondent was -rendered unconscious-, either as a result of the blow on the head or by the fail to- the sidewalk. On the arrival of one of the witnes-sesi who* was on the opposite slide of the street when the trouble ocaurred appellant wtas in the act of assisting respondent ¡bo get up from the sidewalk. Respondent Was very seriously and probably permanently injured.

At the trial there was offered and received in evidence a club or billy mlade out of a piece of ¡heavy steam 'hose about if> inches long, with a wobd'en handle .fastened to one end. This weapon wias foundl on the sidewalk. It iw&s first seen lying at ap-r pellant’s feet when he was trying to help respondent up from, the sid'ewlalk. Respondent testified that Ithlis weapon resemibied one that the appellant had in his hand when he ejected' respondent from the hotel and with which appellant stnulck him on the head.

Appellant contends that 'said weapon was not sufficiently identified to entitle it to be received! in evidence, and that its admission constituted prejudicial! error. With 'this contention we aannot agree. While it li© true that no witness testified: positively to elver having seen appellant have said1 weapon in¡ his hands or in his possession, and appellant denied!1 that he ever had had it, respondent testified that appellant had! a ¡similar looking weapon, and that it -resembled! the weapon with' which appellant struck him,; and! an other witness testified thiat it resemibied a weapon that he had seen in a saloon that had previously been, conducted by appellant. This wias a sufficient identification to warrant the adknission of said weapon in evidence.

Appellant took exception© to the ruling of the trial court on the admission of certain testimony offered by respondent. While we fail to s'ee the materiality of same of 'the testimony objected to', we are unable to see how it in any wise prejudiced the rights of appellant. And certainly this testimony was not of such a character that tibie mere putting of the question to the witnesses was calculated “to inflame and prejudice” the jury, and thereby prevent appellant from having a fair trial.

At thle close of all the testimony, the court permitted respondent,' over appellant's objection, to amend his Complaint. This is assigned as error. The amendment consisted of the a-ddition- of an! allegation of facts which brought the case within the provision© of section 157, Code of Civil Procedure; known as the arrest amid bail- statute. It is respondent’s theory that appellant made a wilfull and malicious, assault upon him, and' it is his contention that the evidence proves tihlat appellant did -make such an assault. Under tlhlis theory of the case and in vieiw of the evidence as it stood at the time the amendment was made, the allowance thereof wias clearly within the 'discretion of the trial court to- allow amendlments in the furtherance of justice or to malee .tibe .pleadings conform to the facts proved Section 150, Code Civ. Proc. The fact that a 'different or additional remedy might be employed for toe enforcement of a. judgment under the amendment is wholly immaterial.

The ¡trial court instructed- the jury that, in assessing plaintiff's damage, if any, they might take into' consideration the nature, extent, and character of toe injury sustained by him, including toe expense, if any, occasioned by .reaslon of such injury. Appellant .excepted! toi this instruction on toe ground that no evidence had been introduced showing or ¡bending to show that any expense hadi been incurred. The court’s attention was called to this instructioini 'by appellants counsel before toe jury retired, and the court explained to. the jury that -the instruction meant:

“That if, under toe evidence, there was. 1» expense incurred by plaintiff, toen, of course, there would be no expense to. be found 'by the jury, and toe jury is the sole judge of that and of the evidence.”

And the court further told the jury:

“The court s-tates to the jury' that, if you find there were no expenses whatever, you will find nothing for expenses.”

As no attempt had been made to show that any expenses had 'been incurred and no evidence .was introduced that tend to show that'any expenses had been incurred, no reference thereto- should hlave been made in the instructions. But, with the explanation made by toe ’court and toe adlmonition .to the jury, it cannot be inferred 'that any allowance for expenses' >wasi made by toe jury in arriving at a verdict. Moreover, it does not appear that añore toan' nominal damages were allowed by the jury, and therefore it is not possible that .aippeHant wias prejudiced by the instructions.

Appellant excepted to the court’s instructions upon toe question of exemplary damages. This instruction1 was as follows:

“The court instructs the jury that, .if they finid by a preponderance of toe ’evidence that 'defendant w'as alctulalted by hatred or ill (will toward toe plaintiff, and to at the assault, if any, was malicious,, yloju may also award toe plaintiff suich damages' as under toe evidence you think'are proper by way of punishment to him for -the assault. The jury, howetier, are instructed that toe law is that exemplary damages or punitive damages should mot be allowed! or given in this case unless you find by a preponderance of tine evidenoe- not only itihat due defendant struck the plaintiff, but also that She acted maliciously in so doing.”

This instruction was proper under the evidence in tlhe case. If die testimony of respondent wais true-^amdi whether .it was true or false wa® a question solely for the jury. — appellant not only assaulted respondent needlessly, hut maliciously, and. in a wanton and ibrutail) manner. In. such cases' the jury may, if they think proper, 'assess exemplary or punitive damages against the defendant. 13 Cyc. 112, and cases cited.

We believe appellant had! a fair tidal, and that the verdict lis warranted1 by the evidence.

The judgment and order appealed from are 'affirmed.  