Bogue v. Gunderson, 137 N.W. 595

Bogue v. Gunderson

137 N.W. 595 | S.D. | 1912

HANEY, J.

The complaint, alleging a malicious assault and battery, demands both actual and exemplary damages. It appears that the plaintiff, an attorney and counselor at law, who had resided in Centerville -for 14 years, on the night of the general election in 1908, entered a drug store in that town, in company with a friend, to procure cigars. Several gentlemen were in the store, including the defendant, all of whom were acquainted with both parties to this action. According to the plaintiff’s testimony, he was about to leave, when the defendant inquired how the election returns .suited- him. A discussion followed, in which the defendant accused the plaintiff .of inconsistent political conduct and having been- influenced by improper motives, and in which the defendant charged that the leaders of the Republican party in this state, to which -the plaintiff belonged, were dishonest, “Then something was said about people being honest again, and he says, 'Well, I am just as honest as any damned Bogue that I ever knew.’ I says, ‘Tinus, I don’t like to discuss personalities in 'a public place, but I -have my suspicions of 'a man going around talking about his own personal honesty,’ I said, ‘and especially a man who would take the witness stand and swear that a flas-hboard on a dam was 18 inches wide, when it was only 12 or less.’ And as soon as I said that he said, ‘Don’t you ever -say that again.’ I started in to reply, and did’t get ¡halfway through- the sentence when he jumped at me, and he hit me right on the left side of the *8head with his. fist, struck me right on the ear, and 'the blow kind of knocked me over on the show case, and my hat fell down over it. He jumped back and started to pull off his coat, and three or four of the boys grabbed him. * * * I stepped around behind the show case and picked up my hat. I said: 'Gunderson, I will give you a chance to pay for your -fun ‘here.’ He says: ‘That is all right. I have got plenty of money to pay for it.’ I says: ‘You will get a chance. You don’t need to worry about that any.’ And I went out on the street.” ■

[1] The plaintiff was allowed to testify over proper objections, that the defendant was interested in-the election as a candidate for state senator on the Democratic ticket. The materiality of this evidence is not apparent. It might better have been excluded, but its admission was not reversible error. The fact it established, presumably known to all the jurors, could not have prejudiced any substantial right.

- [2] The plaintiff was allowed to state, over proper objections, “Of course, under all the circumstances of the case, the place where this occurred, and before a lot of people, it was rather humiliating' to be pounded over the head in the way I was pounded there, and it affects oneY feelings in reference to his standing in the community. Under the circumstances in that case, it being a public place, and a great many of my friends there, it was humiliating to me in the extreme.” This argument as to the natural and obviou-s effects of the assault should not have been made by the plaintiff as a witness. It did not tend to establish any fact whatever — only inferences necessarily flowing from the facts to which the witness had previously testified. But, as it was an argument which might have been presented to the jury at the proper time, and merely suggested consequences, concerning, which there was no room for controversy, there was not such a departure from strictly correct rules of procedure as to constitute reversible error.

[3] The contention that the court erred in allowing the plaintiff to make certain statements concerning property owned by the defendant is not tenable. Though the form of some of the questions and answers may have been objectionable, the plaintiff’s *9testimony, in effect, merely tended to prove the defendant’s reputed wealth; and such testimony is conceded by appellant to be admissible in, this class of cases.

[4, 5] Nor is the contention tenable that the evidence did not warrant the submission of the issue as to exemplary damages, and, if it did, that such issue was improperly submitted. “In any action for the breach of an obligation- not arising from contract, where the defendant has been guilty of * * * malice, actual or presumed, the jury, in addition to- -the actual damages, may give damages for the sake of example, and by way of punishing the defendant.” Rev. Civil Code, § 2292. The term “malice” imports “a wish to vex, annoy or injure another person, established by proof or presumption -of law.” Rev. Penal Code, § Si 1. After defining “malice” substantially in the language of the statute and charging the, jury concerning actual damages, the courtgave the following instructions: “And the jury are also instructed that if they find, by a preponderance of the evidence, that the defendant was actuated by a hatred or ill will toward the plaintiff, and that the assault, if any, was malicious, you may also award the plaintiff such damages as, under the evidence, you think proper by way of punishment to him for the assault. * * * The jury, however, are charged that the law is that -exemplary or punitive damages should not be allowed or given in this case, unless you find, by a preponderance of the evidence, not only that the defendant, Gunder-son, struck the plaintiff, Bogue, but also that Gunders-on acted maliciously in so doing. The jury are also charged that, while, angry a-,. 1 i e.itemng. words and abusive languag-e -are no justi-ficatio ‘ for ..,i r ssault and battery, still they may be considered by the ji,.y in mitigation of damages, if it appears from the evidence that they were used, and were of such a character as would naturally tend to incite the angry passion-s of man, and were spoken so immediately before the assault complained of as that the heat of passion which they were calculated to incite had not had time to cool.”

As malice may be presumed from the manner in which an assault is made, considered in the light of the surrounding circum*10stances, as shown by all the evidence, the court did not err in submitting the question of exemplary damages. Shoemaker v. Sonju, 15 N. D. 518, 108 N. W. 42, 11 Ann. Cas. 1173.

[6] The jury were, in effect, instructed that the plaintiff was not entitled to exemplary damages, unless they believed the defendant was prompted by “a wish to vex, annoy or injure” the plaintiff. This was the applicable rule stated in the language of the statute itself. The instructions, - taken as a whole, excluded exemplary damages, in the absence of the precise condition prescribed by the statute. The court performed its duty. It correctly instructed as to the law applicable to the case. Of course, it might, with propriety, have gone farther and stated what did not, as well as what did, constitute the required condition. 'But it was not requested to do so; and, in the absence of any request for more specific instructions, the defendant is not in position to complain.

[7] Finally, it is contended that the verdict is excessive. One of the statutory grounds for granting a new trial is “excessive damages, appearing to have been given under the influence of passion or prejudice.” Rev. Code Civ. Proc. § 301. Great latitude is allowed in this class of cases. One purpose of exemplary damages is to deter the person against whom they are awarded from repeating the offense and others from committing it. An amount sufficient to serve this purpose in one instance might be wholly inadequate in another. Each action must be governed by its own peculiar facts. The social standing of the parties, the place where the assault occurs, the character of the persons present, the provocation, if any — all the circumstances — are to be considered. The question is not whether the trial court or this court, as triers of fact, would have awarded a less amount. Unless the verdict is- so large as to clearly indicate that it must have been given under the influence of passion or prejudice, it should stand. The language employed by the defendant during the discussion which preceded the assault was decidedly ungentlemanly to say the least. Men of his social standing should not resort to unjustifiable physical force. The learned trial judge was in a far better posi*11tion to determine whether this verdict was influenced by 'passion or prejudice than are the judges of this court. He declined to disturb it. His decision should not be reversed.

The judgment is affirmed.