Busalt v. Doidge

Citations

• 91 Kan. 37
• 136 P. 904
• 1913 Kan. LEXIS 331

Syllabus

<p>SYLLABUS BY THE CO’YRT.</p> <p>1. Assaulting an Officer — Instruction—Assumption of Fact —New Trial. In an action for assault by an officer in making an arrest a chief item of dispute was whether the plaintiff had first assaulted the officer. In the ®nl>y instruction touching this matter it was referred to as “the assault made or attempted to be made on him by the plaintiff.” After a verdict for the defendants the court granted a new trial on account of this expression in the charge, which was complained of as assuming that such assault had been made or attempted. Held, not error.</p> <p>2. Pleadings — Anticipated Defense — Presumptions. It is not necessary or proper ordinarily for á plaintiff to plead regarding an anticipated defense, and an averment in effect that he did not resist an officer in making an arrest states merely what the law would in the absence of proof presume.</p> <p>8. New Trial — Rule on Review When Granted. The rule that a stronger showing is essential to establish error in granting than in refusing a new trial — followed.</p>