Bonham v. Tipton

No. 11,701. Bonham v. Tipton. Decided September 19, 1927. Action for damages for assault. Judgment for defendant. Reversed. 1. Assault — Trial—Proeedwre. In an action for damages for assault, the defendant having testified that lie committed the assault and there being no plea nor evidence of justification or excuse, it was the duty ‘of tlie court to direct a verdict for plaintiff, leaving to the jury the question of damages only. 2. Appeal and Error — New Trial — Assignment of Mrrors. In an action for damages for assault, where defendant admitted the assault without any plea of justification and the verdict was for defendant, objection in the motion for new trial and assignment of errors that the verdict was contrary to the evidence, held sufficiently definite to cover the point on review. Error to the District Court of Saguache County, Hon. J. C. Wiley, Judge. Mr. Jesse Stephenson, for plaintiff in error. Mr. John I. Palmer, for defendant in error. Department One. [MAJORITY — Mr. Justice Denison] Mr. Justice Denison delivered the opinion of the court. Bonham sued Tipton for assault; there was a verdict for defendant and Bonham brings error. The defendant testified that he committed the assault, and there was neither plea nor evidence of justification or excuse; the court should, therefore, have directed a verdict for plaintiff, and left to the jury the question of damages only. It is objected that neither the motion for new trial nor the assignment of errors covers this point, but one ground in the motion is that the verdict is contrary to' the evidence, which, in this particular case, states the exact situation. See Leadville v. McDonald, 67 Colo. 131, 135, 186 Pac. 715, and the assignment sets it forth more definitely. The judgment is reversed and the district court directed to submit only the amount of damages to a jury and render judgment for plaintiff for such sum as they may fix. Mr. Chiep Justice Burke, Mr. Justice Whitpord and Mr. Justice Sheapor concur.