193 S.W.2d 159 | Ky. Ct. App. | 1946
Reversing.
Joe Foster sued William Thomas Dukes and the National Surety Company, surety on Dukes' bond, for assault and battery. Dukes arrested Foster on November 11, 1944, for being drunk in a public place, and while taking him to the city jail struck him on the head with a blackjack. Appellant admits that he was drunk and that it was the duty of Dukes to arrest him, but he claims that Dukes used more force than was necessary in making the arrest. On the trial of the case the jury returned a verdict for one dollar in favor of the plaintiff, and he has appealed. He seeks a reversal of the judgment because of certain rulings of the trial court on the admission of evidence, errors in the instructions, and inadequacy of the damages.
Foster was standing on the sidewalk on Main street in front of a poolroom when he was arrested. Dukes led him to a nearby alley and started up the alley toward the jail, which was located in the next city block. Appellant testified that after they entered the alley Dukes struck him twice with a blackjack when he was offering no *754 resistance. Dukes testified that Foster protested when he was arrested, and that after they turned into the alley Poster threw both arms around him and he struck Foster twice with a blackjack. When asked why he hit Foster he said: "Because he grabbed me. I certainly would not have hit him if he hadn't resisted. When he grabbed my arm I hit him. I think I hit him twice."
On cross-examination he was asked these questions and made these answers:
"Q. Mr. Foster wasn't hurting you at the time you commenced to strike him there was he? A. Well, I don't know that he was giving me any pain at all; no.
"Q. Did you think you were striking him in self-defense, or anything of that kind? A. Well, if I hadn't been I wouldn't have struck him I guess.
"Q. Did you strike him in self-defense, or strike him to make him turn you loose? A. I might have struck him to make him turn me loose. I had nothing against him."
There were two cuts on appellant's head, and six stitches were required to close the wounds. He testified that he paid $15 for medical treatment, and that he lost time from his work as a coal miner by reason of his injuries and his wages during the lost time would have amounted to $64.
Appellant admitted that he had been drinking on the day he was arrested. On cross-examination he was asked where he got his liquor, and he answered that someone had brought it to him from Owensboro. An objection to the question and answer was overruled, but that line of questioning was not pursued further. The evidence was irrelevant, but was not prejudicial.
One of appellant's witnesses was asked concerning a statement made by a woman who passed along the street at the time the difficulty occurred. The witness did not know her. An objection to the evidence was sustained, and the following avowal was made: "If the witness was permitted to answer he would say she said: 'are you gentlemen going to stand here and see this man beat to death?' " The witness was then asked if the woman went on down the street, and he answered: "Well, she stood there and talked — not exactly to any one." It is argued that the alleged statement was part of *755
the res gestae and should have been admitted. As pointed out in Sparks Bus Lines, Inc., v. Spears,
The instructions, except for names, are in the same language as the instructions approved by this court in Murphy v. Phelps,
The fourth ground relied upon by appellant for reversal of the judgment presents a more serious question. The jury, by its verdict, found that appellee used more force to accomplish the arrest than was necessary under the circumstances. Aside from any physical suffering or mental anguish, the undisputed evidence shows that appellant was caused to expend $15 for medical services and to lose a substantial amount in wages. Section 340, subsection 4, of the Civil Code of Practice provides that a new trial may be granted on the application of the party aggrieved for "excessive or inadequate damages, appearing to have been given, under the influence of *756 passion or prejudice or in disregard of the evidence or the instructions of the court." This court has rarely disturbed judgments in personal injury cases because of excessiveness or inadequacy of verdicts as a reference to our opinions in cases on the subject will disclose. However, where the amount was so small that it was evident the jury must have overlooked some material element of damage or ignored the instructions of the court, we have not hesitated to grant a new trial.
In Schriewer v. Schworer,
In the case before us the evidence was conflicting and the jury might well have returned a verdict for the defendant, but since it found for the plaintiff, the amount of the damages found by it, $1, was clearly inadequate.
The judgment is reversed, with directions to grant appellant a new trial, and for further proceedings consistent herewith. *757