59 Minn. 92 | Minn. | 1894
This is an action for damages for assault and battery. The jury awarded plaintiff a verdict for $750, and, from an order-denying defendant’s motion for a new trial, he appeals.
Both parties reside in Duluth, and had, for more than a year-prior to the assault, been connected with each other in some business transactions. On the morning in question, plaintiff went to the office of defendant in relation to a business matter, and after-some discussion concerning the same, according to plaintiff’s testimony, he said to defendant: “Mr. Humphreys, you have beaten a great many people here in Duluth, but I don’t propose to have you beat me this way.” According to defendant’s testimony, plaintiff said: “You have been skinning and swindling people in this town for a year, but you are not going to rob me.” Plaintiff denies that he said this, but admits that the impression he wanted to convey was that defendant had been cheating people. Plaintiff was sitting-down, leaning back in his chair, and testifies that defendant then struck him with his fist, knocked him and the chair over backward, then struck him and kicked him four or five times, when another person came into the office, and seized and held defendant.
There is not much conflict in the testimony as to the assault. Defendant testifies: “On the spur of the moment, I struck him with both hands, and he dodged and fell, and I slapped him as soon as I got to the chair, and I proceeded to kick him. He had his legs in the air, lying on his back, and I tried to shove his legs over; in fact, I kicked one of his legs, trying to pull him over to get at him, and I couldn’t; and I kicked him, I think, five or six times. My secretary came in, and, pulled'me away.”
1. It is contended by appellant that the trial court erred in char
2. The court charged the jury, in substance, that it was for them to determine whether the assault was malicious or premeditated,' or whether the language used by plaintiff threw defendant suddenly into a beat of passion, and whether he committed the assault on the impulse of the moment, without premeditation; and that, if it was malicious, they would be at liberty, if they saw fit, to award punitive damages.
Appellant contends that there was no evidence in the case which will sustain an award of punitive damages. We are of the opinion that if the defendant had gone no further than to slap the plaintiff, or knock him down, on the impulse of the moment, and under the circumstances, the jury would have no right to ward punitive damages. There would then be no evidence to show malice of the character necessary to support an award of punitive damages. It sufficiently appears that the insulting language used by plaintiff towards defendant induced the assault, and, up to that point, malice of this character did not appear. But the defendant did go further, and, while the plaintiff was prostrate and helpless on the floor, kicked him several times, and, according to plaintiff’s testimony, struck him also. It is also in evidence that there were seven contused lumps on plaintiff’s side, back, and hip, and that some of the same were black and blue for thirty days thereafter. It also appears from the evidence that defendant was thirty three years of age, and weighed 215 pounds, while the plaintiff weighed only 155 pounds.
We are of the opinion that the evidence was sufficient to justify the jury in awarding, in their discretion, punitive damages. This disposes of the case, and the order appealed from should be affirmed. So ordered.
(Opinion published 60 N. W. 813.)