
    Jacob Klein v. Joseph Thompson.
    1. In an action for assault and battery, tbe plaintiff may recover as part of bis damages tbe amount of a surgeon’s bill which be incurred for treating bis injuries, although, before tbe trial, it bad been voluntarily paid by tbe trustees of the township, to whom tbe plaintiff was under no legal liability to refund tbe amount.
    S. Tbe plaintiff may give evidence to show express malice in committing tbe assault, without an averment in tbe petition that tbe assault waa malicious.
    Error to the district court of Greene county.
    On the 23d February, 1867, Thompson filed his petition in the court of common pleas of Greene county, against Klein, to recover of him damages for unlawfully and violently assaulting and beating the plaintiff, etc., and for surgeon’s charges, etc. The issues joined by petition, answer, and reply were tried to a jury.
    The verdict and judgment being for the plaintiff Thompson, the defendant Klein filed his petition in error in the district court, where the judgment was affirmed; and to re.verse the judgment of affirmance Klein filed his petition in error in this court.
    The further facts of the case, so far as material, appear in the opinion of the court.
    
      B. A. Samson and S. B. Wilson for plaintiff in error:
    1. The common pleas erred in permitting evidence of the amount of the surgeon’s bill to go in evidence to the jury, and in the instructions to the jury upon that subject. The payment of the surgeon’s bill by the township trustees was gratuitous on their part. (62 O. L. 19, § 4) As Thompson did not request them to pay this debt, its payment by them did not create any liability in their favor against him. Consequently Thompson was not entitled to recover from Klein, as a part of his compensatory damages, the surgeon’s bill. When he brought his action he had neither paid the bill nor was he legally liable to pay it either to the surgeon or the trustees.
    
      2. The common pleas erred in permitting the introduction of testimony to make out a case of malicious assault and battery. The plaintiff’s cause of action, as stated in his petition, has not the element of malice in it. Hence the question of malice was not in issue. Grayden et al. v. Gaddes, 20 Ind. 515; id. 62; 38 Barb. 413; 7 Bosw. 498; 32 Mis. 203.
    The error was not cured by the court subsequently directing the jury to disregard that testimony as incompetent. McCurry v. Hooper, 12 Ala. 123; Erben v. Lorrillard, 19 N. Y. 299; Worrall v. Parmelee, 1 N. Y. 519; 6 Binney, 430; 5 Serg. & Rawle, 352; 1 Penn. 388; 31 Penn. St. 193; The State v. Wolff, 15 Misso. 168; 15 Ala. 623; 7 Wend. 193; Mimms v. The State, 16 Ohio St. 221.
    3. The damages assessed by the jury were not warranted by the evidence, but were excessive. Bodwell v. Osgood, 3 Pick. 385; 3 Sedg. Meas. Damages, 774.
    The jury were misled by the charge of the court, and although not formally excepted to at the time, where it has occasioned manifest injustice the court should reverse the judgment.
    
      Ocvry <& Shea/rer for defendant in error :
    1. After the action was brought, the trustees paid the surgeon’s bill. The right of action had accrued to Thompson against Klein, and his liability had been fixed. Can Klein obtain any benefit from the act of the trustees paying the surgeon’s bill ? Thompson is both morally and legally bound to refund the amount thus advanced -by the trastees for his temporary relief. Sedg. Meas. of Damages, side p. 39 et seq.; Yates v. Whyte, 4 Bing. N. C. 472; Medbury v. Watson, 6 Metc. 246; Stiles v. White, 11 Metc. 356.
    2. As the testimony admitted to show malice was afterward withdrawn from the jury, the plaintiff in error has no reason to complain. Crary v. Sprague, 12 Wend. 41; McKnight v. Dunlop, 1 Seld. 537; Travis v. Barger, 24 Barb. 614.
    
      3. The verdict is sustained by the evidence, and the damages are not excessive.
   White, J.

The action below was for an assault and battery committed by the defendant upon the plaintiff.

1. On the trial the amount of the surgeon’s bill against the plaintiff, for services rendered in treating his injuries, was permitted to go in evidence to the jury. It appeared that the account, though charged to the plaintiff, was subsequently paid by the trustees of the township. The defendant excepted to the introduction of the evidence.

We do not think the payment by the trustees inured to the benefit of the defendant, or can be held to diminish his liability. It was not intended as a satisfaction of any part of the plaintiff’s claim against him, and, we think, it ought not to be held to have that effect.

It is true, the trustees may have no right to recover the amount paid from the plaintiff. But in this we see no good reason why he ought not to be allowed to recover from the party whose wrong caused the loss, and thus be placed in possession of the means to enable him to return the money voluntarily, if in conscience he should see proper to do so.

2. Declarations of the defendant made subsequently to the assault and battery, and tending to show express malice in the defendant in inflicting the injury complained of, were also allowed, against the exception of the defendant, to go in evidence. But the court subsequently, during the progress of the trial, on discovering that the petition contained no averment of malice, ruled out the evidence, and instructed the jury to disregard it.

It is contended that the introduction of this evidence was error to the prejudice of the defendant, which was not cured by subsequent exclusion.

In this State we do not regard the admission of improper evidence to the jury, which is afterward ruled out, as of itself constituting ground for reversal; though the question of its influence in producing a wrong verdict ought to be considered on a motion for a new tidal. Mimms v. The State, 16 Ohio St. 221.

It is true, however, as contended by counsel, that the evidence in that case was excluded on motion of the party; but there would be no sound principle in holding it to be no ground for Reversal where the exclusion is on motion of the party, and the contrary to be the effect where the same thing is done by the court sua sponte.

But in our opinion the error was not in admitting, but in excluding, the evidence.

The ground of the exclusion was the absence of an averment of malice in the petition.

The petition is only required to contain a statement of the facts constituting the cause of action. But where the act occasioning the injury is unlawful, the motive or intent of the wrong-doer, as respects the cause of action, is immaterial. The. malice of the defendant is not in the nature of special damage, which is required to be averred; but is allowed to be given in evidence as showing the character of his conduct to enable the jury to determine the question of exemplary damages. Damages of this description were often allowed in this class of actions (1 Saund. on Plead. & Ev. 155); but no averment of malice is found in the approved common-law forms of a declaration for assault and battery. 2 Chitty’s Plead. s. p. 850; 1 Swan’s Prac. & Plead. 591; 1 Saund. supra, s. p. 149; 2 Greenl. on Ev. sec. 82, note.

And Mr. Greenleaf, in the work last named (sec. 89), expressly states that “ The manner, motives, place, and circumstances of the assault, though tending to increase the damages, need not be specially stated, but may be shown in evidence.”

3. It is assigned for error that the court erred in its instructions to the jury, that the verdict is contrary to the evidence, and that the damages are excessive.

No exception was taken to the charge, nor was it made a ground for new trial any farther than regards the direction to the jury that they might allow the surgeon’s bill. On the question of the verdict, it is sufficient to say that the recerd shows a clear case for recovery by the plaintiff; and while we should have been better satisfied, if, under the circumstances of the case, the verdict had been for a less amount, yet we find no sufficient grounds to warrant us in reversing the judgment.

Judgment affirmed.

Brmeerhoee, C.J., and Scott, "Welch, and Day, JJ., concurred.  