163 N.W. 674 | S.D. | 1917
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 appealed.
The only question that requires our consideration is whether this judgment can stand in the light of the instructions of the court. The evidence showed that upon the day of the alleged assault 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 * * * at the time of his first encounter with the respondent, or whether ¡he received such injury shortly afterward at the time of the fight when he was -resisting arrest.”
Appellant claimed, and there was evidence tending to show,that he received the injury at the time of the 'first encounter.
“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 that 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 be entitled to a verdict at your hands.
“But, on the other hand, if }*ou find from the evidence that Mr. Mohan was the one who- inflicted this injury upon plaintiff, he would be entitled to recover, or, in other words, if you find the facte- are as contended by him, he would be entitled to a verdict.”
And upon the question of amount of damages the court instructed as follows:
“So, under this general rule, if you find in. favor of' the plaintiff, he 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 physical and mental powers, if any.”
"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 aggrieved party. Any other doctrine would lead to the utmost confusion. If the jury could question the charge of the judge, the result would be that in every case the rvhole case, both law- and facts, would go 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 and unhinge the whole system. The argument of the respondent, by which he attempts to- draw a distinction between 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.