Appellee hit appellant with his fist and broke appellant's jaw. Appellant brought this action for damages and the jury returned a verdict in appellee's favor. On this appeal appellant contends that several errors committed by the trial court call for a new trial.
Amendment of Answer
Appellant's counsel interrupted appellee's counsel's opening statement to the jury in order to object to the latter making any reference to self-defense to the alleged assault and battery. The ground for the objection was that self-defense was an affirmative defense and since it had not been pleaded in accordance with Civil Rule
Under Civil Rule 15(a)
Motion for Directed Verdict
At the close of the evidence appellant moved for a directed verdict on the issue of self-defense. The motion was denied. Appellant assigns this action of the trial court as error.
Appellant testified that he and two friends, Jack Carl and Ken Boggs, stopped at the Center Bowl in Spenard, Alaska to use a public telephone. Appellant and Boggs were leaning against the wall while Carl made a phone call in a wall-type telephone booth. Appellant testified that while he was speaking with Boggs he recalled noticing a man approach and pass by. Appellant's next recollection was that someone tapped him on the shoulder, and as he turned to face this person he saw only a flash of light as he was struck a sharp blow to the face.
On the other hand, appellee testified that he had been bowling; that when he went to the clothes rack to get his sweater he observed that appellant had his left hand in a pocket of the sweater; that he said to appellant, "Get your hands out of my pocket"; that appellant took his hand out of the pocket of the sweater and moved toward appellee; that appellant was towering over appellee, appellant being 6 feet 2 inches tall as compared with appellee's 5 feet 6½ inches; that appellant was extremely belligerent in manner and was clenching his fist; that appellant advanced toward appellee some more and that appellee backed up against a row of seats; that two other persons appeared to be with appellant and were "ganging up" on appellee; that there was a man behind appellee which gave him some concern because he thought he was being surrounded; and that when appellant moved toward appellee the second time and appellee noticed that the person behind him made a movement, appellee struck appellant on the jaw because he thought that appellant and his companions were surrounding him and were about to attack him.
Looking at the evidence in a light most favorable to appellee, it seems clear from appellee's testimony that fair minded men in the exercise of reasonable judgment could have differed on the question of whether appellee was justified as a matter of self-defense in striking appellant. Submitting this issue for jury determination was proper.
Instruction No. 13
In Instruction No. 13 the jury was told:
Appellant claims that this instruction was erroneous because it misstated the law as to assault and battery by placing the burden on appellant to prove that appellee acted maliciously.
Appellee argues that if the instruction was erroneous, the error was cured by Instruction No. 14.
It is true, as appellee points out, that appellant did not object to the giving of Instruction No. 13. We have held that we shall not pass upon an assertion that the giving of an instruction was error where the matter had not been properly brought to the attention of the trial court.
That is the situation here. We are unable to assess the effect that the erroneous instruction may have had on the jury. It is clear, though, that the court placed on appellant a greater burden than was required, by making it necessary for him to prove that appellee acted with malice in committing an assault and battery on appellant. It is entirely possible that the jury may have found that there was an assault and battery on the person of appellant, but determined that there was no liability because it was not proved that appellee acted maliciously, that is, with ill will, or hatred or enmity. In this situation we cannot say with any degree of confidence or certainty that the erroneous instruction was not prejudicial to appellant. There must be a new trial.
Appellant's Requested Instruction
Appellant requested the trial court to instruct the jury as follows:
The court denied the request and appellant assigns that ruling as error.
In Instruction No. 18 the court told the jury that if they found that the injuries inflicted on appellant were not injuries that were necessary to be inflicted by appellee in self-defense, then their finding should be for appellant.
Argument to the Jury
In his final argument appellant's counsel reviewed the evidence and outlined his theory of the case to the jury, but omitted any reference to damages. At the close of appellant's opening argument, appellee's counsel presented his argument to the jury. He discussed the question of damages. When he finished, he moved the court to restrict appellant's rebuttal argument to matters mentioned in his opening argument and that appellant be precluded from making any argument respecting damages. The court granted the motion, stating that appellant had waived any argument on damages by not having mentioned that subject in his opening argument, and the court precluded appellant's counsel from making any argument to the jury on the question of damages in rebuttal.
In making this ruling the court relied upon that part of Civil Rule 46(g) which provides that "If the plaintiff waives the opening argument and the defendant then argues the case to the jury, the plaintiff shall not be permitted to reply to the defendant's argument."
The judgment is reversed and the case remanded for a new trial.