532 P.2d 411 | Mont. | 1975
No. 12748
I N THE SUPREME COURT OF THE STATE OF MONTANA RICKY HOLLAND, a minor, by h i s Guardian ad l i t e m , CORAL HOLLAND,
P l a i n t i f f and Respondent, RALPH BIGGS, CALVIN BIGGS, and DENNIS BIGGS ,
Defendants and A p p e l l a n t s . Appeal from: D i s t r i c t Court o f Eighteenth J u d i c i a l D i s t r i c t , Honorable W. W. L e s s l e y , Judge p r e s i d i n g . Counsel of Record : For Appellants : Morrow, Nash and Sedivy, Bozeman, Montana James H. Morrow argued and Edmund P. Sedivy
argued, Bozeman, Montana For Respondent: Landoe and Gary, Bozeman, Montana Joseph B. Gary argued, Bozeman, Montana
Submitted: /im 9, l q 7 5 I' Decided: fr.9 2 6 ?c-j F i l e d : ., - M r . J u s t i c e Frank I . Haswell d e l i v e r e d t h e Opinion of t h e C o u r t . I n a n a c t i o n f o r damages f o r a s s a u l t , t h e j u r y r e t u r n e d a v e r d i c t f o r p l a i n t i f f i n t h e amount of $7,600 and judgment w a s e n t e r e d t h e r e o n . Defendants a p p e a l from t h e judgment and d e n i a l of t h e i r m o t i o n s f o r a new t r i a l , f o r judgment n o t w i t h - s t a n d i n g t h e v e r d i c t , and f o r a l t e r a t i o n o f t h e judgment.
P l a i n t i f f i s Ricky H o l l a n d , a g e 17 a t t h e t i m e of t h e a l l e g e d a s s a u l t . Defendants a r e Ralph Biggs, a g e 7 0 , t h e owner o f t h e farm l a n d on which t h e a l l e g e d a s s a u l t o c c u r r e d ; and h i s two s o n s , Dennis, a g e 23, and C a l v i n , a g e 22.
On October 22, 1972, p l a i n t i f f was h u n t i n g i n t h e h i l l s n o r t h of B e l g r a d e , Montana, w i t h two companions, Roger Branden- b u r g e r , a g e 1 7 , and Randy Simonson, a g e 1 8 . That morning t h e boys had s e c u r e d p e r m i s s i o n from a r a n c h e r t o hunt on h i s prop- e r t y b u t , e i t h e r d e l i b e r a t e l y o r i n a d v e r t e n t l y , t h e y had e n t e r e d l a n d s owned by d e f e n d a n t Ralph Biggs. The boys s p l i t up t o h u n t , w i t h Brandenburger and Simonson h u n t i n g t h e lower ground and p l a i n - t i f f Holland h u n t i n g h i g h e r up.
Defendants f i r s t e n c o u n t e r e d Brandenburger and Simonson, o r d e r i n g them o f f t h e p r o p e r t y . I n s p i t e of t h e b o y s ' a p o l o g i e s , d e f e n d a n t Ralph Biggs a l l e g e d l y h a r a s s e d them and u l t i m a t e l y s t r u c k Simonson w i t h h i s c a n e o r a " c l u b " , a c c o r d i n g t o d i f f e r e n t v e r s i o n s of t h e i n c i d e n t . A s Brandenburger and Simonson l e f t t h e Biggs p r o p e r t y , d e f e n d a n t s went i n s e a r c h of p l a i n t i f f Holland and found him.
The e v e n t s which f o l l o w e d a r e t h e b a s i s of t h i s s u i t . P l a i n t i f f c l a i m e d he was a t t a c k e d and b e a t e n by d e f e n d a n t s , w i t h - o u t warning o r p r o v o c a t i o n . Defendants contended p l a i n t i f f t h r e a t - ened d e f e n d a n t Ralph Biggs w i t h a p i s t o l when a r e q u e s t was made f o r him t o l e a v e B i g g s ' p r o p e r t y . According t o d e f e n d a n t s , Dennis Biggs l i g h t l y backhanded p l a i n t i f f when he saw h i s f a t h e r t h r e a t - ened by p l a i n t i f f ' s drawn p i s t o l .
- 2 - I n December 1 9 7 2 , p l a i n t i f f , t h r o u g h h i s mother a s g u a r d i a n ad l i t e m , f i l e d s u i t i n t h e d i s t r i c t c o u r t , G a l l a t i n County. The c a u s e came on f o r t r i a l i n J a n u a r y 1974 and t h e j u r y r e t u r n e d a v e r d i c t awarding: $200 compensatory damages a g a i n s t e a c h d e f e n d a n t ; $5,000 p u n i t i v e d a n a g e s a g a i n s t de- f e n d a n t Ralph Biggs; $1,000 p u n i t i v e damages a g a i n s t d e f e n d a n t C a l v i n Biggs; and $1,000 p u n i t i v e damages a g a i n s t d e f e n d a n t Dennis Biggs. A l l t h r e e d e f e n d a n t s a p p e a l from t h e judgment e n t e r e d on t h i s v e r d i c t and from d e n i a l of t h e i r p o s t - t r i a l m o t i o n s f o r r e l i e f from t h e judgment.
Two i s s u e s a r e p r e s e n t e d on a p p e a l : (1) Was t h e a d m i s s i o n of t e s t i m o n y c o n c e r n i n g p r e v i o u s
a s s a u l t s r e v e r s i b l e e r r o r ? ( 2 ) Was t h e damage award e x c e s s i v e ? The f i r s t i s s u e i n v o l v e s two a l l e g e d p r i o r a s s a u l t s :
(1) t h e a l l e g e d a s s a u l t on Randy Simonson a few m i n u t e s p r i o r t o t h e i n c i d e n t forming t h e b a s i s of t h e p r e s e n t s u i t , and ( 2 ) an a l l e g e d a s s a u l t by d e f e n d a n t Ralph Biggs on a n o t h e r h u n t e r , L e s t e r Covey, i n t h e f a l l of 1960.
Immediately p r i o r t o t r i a l , d e f e n d a n t s made t h i s motion: "The Defendants h e r e i n move t h i s C o u r t i n l i m i n e , t o o r d e r t h e P l a i n t i f f t o r e f r a i n from a l l u d i n g t o o r a s k i n g q u e s t i o n s a b o u t [ t h e a l l e g e d Simonson a s s a u l t ] , o r any o t h e r i n c i d e n t i n v o l v i n g a n a l l e g a t i o n of a s s a u l t o r b a t t e r y , a l l e g e d l y committed by one o r a l l of t h e Defendants upon any o t h e r p e r s o n p r i o r t o t h e d a t e of t h e a l l e g e d i n c i d e n t h e r e i n * * *.'I
( B r a c k e t e d words p a r a - p h r a s e d . ) The d i s t r i c t c o u r t d e n i e d t h e motion a s t o t h e a l l e g e d Simonson a s s a u l t , b u t g r a n t e d i t a s t o any o t h e r a l l e g e d a s s a u l t . Ad- m i s s i b i l i t y f o r impeachment p u r p o s e s was r e s e r v e d f o r l a t e r r u l - i n g a t t h e t r i a l .
The d i s t r i c t c o u r t ' s r u l i n g a d m i t t i n g e v i d e n c e of t h e a l l e g e d Simonson a s s a u l t was c o r r e c t . The e v i d e n c e was a d m i s s i b l e to show the sequence of events leading up to the assault sued upon; to show defendants1 state of mind upon encountering plaintiff Holland; and as evidence of malice supporting an award of punitive damages for the alleged assault on plaintiff.
As a general rule, evidence of prior assaults is inad- missible in a trial of a civil action for assault. Gunderson v. Brewster, 154 Mont. 405, 466 P.2d 589; 6 Am Jur 2d, Assault and Battery S217 and cases cited therein. A recognized exception to this rule, applicable in the instant case, is expressed in the Annotation, 66 ALR2d 806, 826:
"When to omit such evidence would impair the jury's understanding of the circumstances surround- ing the assault sued upon, evidence of similar assaults or acts upon other persons has generally been held admissible by the courts treating the question."
Here, the events involving the alleged assault on Simonson ex- plain the circumstances surrounding the alleged assault on plain- tiff. More particularly they explain the frame of mind of defend- ants immediately prior to the alleged assault on plaintiff. The circumstances also furnish evidence of malice supporting an award of punitive damages, another recognized exception to the general rule of inadmissibility. Annotation 66 ALR2d 806, 816; 1 Jones on Evidence, 6th Ed. S4:12.
The prior assault by defendant Ralph Biggs on hunter Lester Covey was admitted under different circumstances. During plaintiff's case-in-chief, plaintiff's witness Roger Brandenburger testified that defendant Ralph Biggs, in the course of his threats to Brandenburger and Simonson preceding the alleged Simonson assault, made the following statement:
''He walked up to Randy, and said that he ought to beat us within an inch of our lives, because he said -- well, he said a guy had trespassed before, and he pointed up the hill, and he said 'I beat a guy within an inch of his life one time "I .
Thereafter in defendants1 case-in-chief, defendant
Calvin Biggs on direct examination by defense counsel denied that the statement concerning beating a prior trespasser had been made by anyone. On cross-examination by plaintiff's counsel he reaffirmed this denial. Calvin was then asked by plaintiff's counsel:
"Have you or your father ever beat the hell out of anybody else?"
Defendants' counsel objected that this was incompetent, irrelevant and immaterial, but his objection was overruled. Calvin then answered "No".
These questions and answers followed: "Q. Has your father? A. No. "Q. Ever? A. No. Q . You know that for a fact? A. Yes". In rebuttal, plaintiff called Lester Covey as a witness.
He testified that he had been the victim of a beating at the hands of Ralph Biggs and his hired man in the fall of 1960. This alleged assault occurred when hunters were discovered on Biggs' property without his permission. Defendants made strenuous and lengthy objection to the admission of this testimony, but tne district court permitted its introduction, apparently as impeach- ment testimony.
We hold the district court erred in permitting the initial question to Calvin Biggs concerning whether he or his father had ever beaten the hell out of anybody else. This question is ir- relevant to the assault on plaintiff. It does not impeach Calvin, the witness. It does not prove whether Ralph Biggs made the statement to Brandenburger or Simonson. It is simply an effort to impeach the statement of defendant Ralph Biggs on a collateral matter during cross-examination.
Tne reason for the rule prohibiting cross-examination of a witness on collateral matters has been stated in 4 Jones on Evidence, 6th Ed., 525:!3, pp. 131, 132:
"Any other rule would lead to the trial of innum- erable side issues and distract the attention of the jury from the real questions being tried; and witnesses would be subjected to the unjust necessity of being able to produce evidence to corroborate their statements on these collateral matters. The test for determining whether a matter is relevant on cross-examination has been said to be: Would the cross-examining party be entitled to prove it as a part of his case in chief?" These Montana cases support the rule that a witness can-
not be impeached by contradicting him on collateral matters: State v. McConville, 64 Mont. 302, 209 P. 987; State v. Deeds, 126 Mont. 38, 243 P.2d 314.
Having thus erred in permitting the initial question and answer, the error was compounded by permitting plaintiff on rebuttal to introduce testimony through Lester Covey contradict- ing defendant Calvin Biggs' response to the improper question. Evidence by way of impeachment is improper on a point not properly in evidence. Garrison v. Trowbridge, 119 Mont. 505, 177 P.2d 464; State v. Mott, 72 Mont. 306, 233 P. 602. Here the trial got far afield of the issues in the case by becoming entangled in an alleged assault that occurred 12 years before the assault sued upon.
The prejudicial effect of this inadmissible testimony is obvious. Accordingly, its admission constitutes reversible error. This holding renders consideration of the issue of excessive damages unnecessary. The judgment is vacated and the cause is remanded to the district court for a new trial. Justice We concur: - , Justices
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