
    [No. 23208.
    Department One.
    June 29, 1931.]
    Harry Dial et al., Respondents, v. Theo. Dominick, Appellcmt.
      
    
    
      A. N. Corbin, for appellant.
    
      LeRoy McCann, for respondents.
    
      
       Reported in 300 Pac. 1061.
    
   Mitchell, J.

This is an action by Harry Dial, a minor, by his guardian ad litem, to recover damages for assault and battery. Damages were alleged and judgment demanded in the sum of $1,600. There was a verdict in the sum of $350. Defendant has appealed from a judgment on the verdict.

The principal assignment urged on the appeal is that the trial court in its instructions advised the jury that it was authorized to take into consideration certain items of damages, among others, beyond those mentioned in the complaint. The instructions were broader than the complaint in that respect, but the record shows justification therefor on account of testimony admitted on behalf of the plaintiff that was in no way objected to by the appellant. As stated in Schirmer v. Nethercutt, 157 Wash. 172, 288 Pac. 265:

“Whatever the deficiencies in the complaint may have been, they were amply covered by proofs in the case, and the pleading is to be deemed to be amended to conform to the proof, in the absence of surprise and prejudice, under our unvarying practice.”

The only other assignment on the appeal relates to the sufficiency of the facts to justify the verdict. Concerning this assignment there was abundant evidence' to take the case to the jury and to justify the verdict.

Judgment affirmed.

Tolman, C. J., Holcomb, Parker, and Main, JJ., concur.  