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Winn v. Inman

OPINION FILED NOVEMBER 23, 1983.

DENNIS WINN, PLAINTIFF-APPELLANT,

v.

GEORGE INMAN, D/B/A GEORGE'S VILLAGE TAP, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Marshall County; the Hon. Charles M. Wilson, Judge, presiding.

PRESIDING JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

In an action to recover damages for personal injury which the plaintiff, Dennis Winn, alleged was the result of a battery by defendant, George Inman, d/b/a George's Village Tap, the jury returned a verdict in favor of the defendant. The circuit court of Marshall County entered judgment on the verdict and denied plaintiff's post-trial motions.

The testimony at trial discloses this controversy arose out of a fight in a tavern owned and operated by the defendant in which the plaintiff was a patron on March 1, 1980. The details of the fight are not vital to our decision. The plaintiff and his brother-in-law were the occurrence witnesses for the plaintiff, and they testified to an unprovoked assault and battery by the defendant in the latter's tavern. The defendant and his bartender-employee contradicted the version of the incident testified to by the plaintiff in many of its essential elements. There was also testimony of serious personal injury to the plaintiff and in particular an injury to the plaintiff's eye caused by a blow from a pool cue or a fist. On this appeal the plaintiff makes several assignments of error. First, the plaintiff argues the trial court erred in giving instructions and a special interrogatory as well as refusing other instructions; second, plaintiff argues the trial court erred in refusing to permit impeachment of the defendant's testimony by allegations in his answer and third, the plaintiff argues the trial court erred in excluding evidence tending to show the bias of the bartender where it appeared the bartender was paid in cash without taxes being withheld.

We first consider defendant's instructions Nos. 2 and 3 and the special interrogatory which he submitted. Each was objected to by plaintiff but the objections were overruled and the instructions and special interrogatory were given.

Instruction No. 2 provided:

"The plaintiff claims he was injured and sustained damage when defendant, without any provocation or cause, intentionally struck him about the head and face with a pool cue. The plaintiff further claims that the foregoing was a proximate cause of the claimed injuries. The defendant denies that he, without any provocation or cause, intentionally struck the plaintiff about the head and face with a pool cue and denies that the claimed act was a proximate cause of the claimed injuries. Defendant further denies that Plaintiff was injured or sustained damages to the extent claimed.

The defendant also sets up the affirmative defense that in reasonable apprehension for his own well-being, he struck the plaintiff in defense of his own person."

Instruction No. 3 provided:

"The plaintiff has the burden of proving each of the following propositions:

First, that the defendant, without provocation or cause, intentionally struck him about the head and face with a pool cue.

Second, that the plaintiff was injured.

Third, that the claimed act of the defendant was a proximate cause of the injury to the plaintiff.

In this case, the defendant has asserted the affirmative defense that he struck the plaintiff in defense of his own person. The defendant has the burden of proving that in striking the plaintiff, he reasonably believed that there was immediate danger of his being injured and that he used reasonable force to defend himself as appeared to him to be necessary under the circumstances.

If you find from your consideration of all of the evidence that each of the propositions required of the plaintiff has been proved and that defendant's affirmative defense has not been proved, then your verdict should be for the plaintiff. If, on the other hand, you find from your consideration of all the evidence, that any of the propositions the plaintiff is required to prove has not been proved, or ...


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