Gartner v. Mohan

Jul 5, 1917

File No. 4122

Versions:163 N.W. 674

39 S.D. 202

1917 S.D. LEXIS 113

WHITING, J.

Action for damages claimed to' have been suffered by plaintiff as a result of an assault by defendant. Verdict for plaintiff in the sum of $1. From- the judgment thereon and from an order denying a new trial, plaintiff аppealed.

The only question that requires our consideration is whether this judgment can stand in the light оf the instructions of the court. The evidence showed that upon the day of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the alleged assаult there were two affrays in which plaintiff was a party. Respondent contends, and we think correctly, that the sole issue of fact tried to the jury was:

“Whether this appellant received the injury * * * аt the time of his first encounter with the respondent, or whether ¡he received such injury shortly afterward аt the time of the fight when he was -resisting arrest.”

Appellant claimed, and there was evidence tеnding to show,that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍he received the injury at the time of the 'first encounter. *204Respondent claimed, and there was evidence tending to show, that such injury was received at the later encounter, аnd that such injury was not inflicted by respondent. That plaintiff was injured on one or the other of these оccasions, and that his injury was of a quite serious nature, were undisputed. The court, among other things, instruсted the jury as follows:

“Now, gentlemen, in view of these contentions of these parties, it is the duty of the court to- charge, that, if you find from the evidence thаt the defendant did not kick the plaintiff, that is, inflict the injury of which complaint is ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍made, your verdict, of course, should be in favor of Mr. Mohan, or, in other words, if you find the facts are as contended by him, he. would bе entitled to a verdict at your hands.

“But, on the other hand, if }*ou find from the evidence that Mr. Mohan was thе one who- inflicted this injury upon plaintiff, he would be entitled to recover, or, in other words, if you find the fаcte- are as contended by him, he would be entitled to a verdict.”

And upon the question of amоunt of damages ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the court instructed as follows:

“So, under this general rule, if you find in. favor of' the plaintiff, hе would be entitled to- recover for the reasonable value of the time, if any, lost because of the injury;, the reasonable value of medical services disbursed or incurred by reason thereof, anid also- for the physical injury and consequent pain and suffering, together with impaired рhysical and mental powers, if any.”

[1,2] These instructions were in no¡ manner excepted to by eithеr party, and, whether right or wrong, they become the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍law of the -case under the rule repeаtedly announced by this, court. See Schmidt v. Carpenter, 27 S. D. 412, 131 N. W. 723, Ann. Cas. 1913D, 296, and the numerous cases from this state referred to in-this case and in the notes thereto in Ann. Cas. I-t is too plain to admit of argument that the vеrdict of the jury was in entire disregard of these instructions. Such verdict being for plaintiff, it must of necessity, if the jury had followed the instructions of the court, have been for some substantial amount. But respondent contends that there was evidence in the case upon which- the jury -were justified in finding that respondent was not the -party who caused the particular injury for which- the damages are claimed, *205but that there was evidence that justified the jury in finding that he did commit a technical assault upon apрellant entitling appellant to nominal damages. Conceding that -there was evidence thаt would have warranted the court in giving’ the jury an instruction under which i-t might have returned the verdict which was returned, it is clear that respondent did not try this case upon any such theory, and respondent asked fоr no instruction based upon any such theory. When this verdict was returned, it being' in clear disregard of the instructions given by -the trial court, -there was vested in the trial court no discretion to deny the motion for new trial; the motion under such circumstances presented a pure question of law, and the trial court was bound to set the verdict aside and grant a new trial. As was said by the court in Dent v. Bryce, 16 S. C. 14:

"It follows, then, that a verdict in direct conflict with the law of the court is a verdic-t against the law, and will in all cases be vacated in the first instance, either sua sponte by the judge, or on motion of the aggriеved party. Any other doctrine would lead to the utmost confusion. If the jury could question the chargе of the judge, the result would be that in every case the rvhole case, both law- and facts, would gо to the jury, under the hope that, whatever might be the- charge of the judge at the time, he could be satisfied afterwards that he was in error. This -could not be tolerated. It would degrade the judiciary аnd unhinge the whole system. The argument of the respondent, by which he attempts to- draw a distinction betwеen a verdict -contrary to the charge of the judge and one-contrary to law, though ingenious, fails to meet the case. In fact, that doctrine would open- the door to the very evil which a separation of the powers and- duties of the court and jury was intended to prevent. So far as the jury is concerned, there is no such thing as the charge of the judge being contrary to law, because, whatever may be 'his -charge, it is the law to them.”

The judgment and order appealed from are reversed.