297 P. 31 | Cal. Ct. App. | 1931
The action was commenced to recover damages alleged to have resulted to plaintiff from an assault made upon her by the defendant. The complaint characterized the assault as unprovoked and malicious and alleged numerous injuries sustained and asked damages, both compensatory and punitive. The trial was by jury and the verdict was in favor of the plaintiff in the sum of $3,500. On motion for a new trial the court below ordered a remission of the damages to the end that unless plaintiff consented to accept the sum of $750 in full satisfaction, a new trial would be ordered. Thereupon plaintiff remitted the excess and judgment was entered in her favor for the amount of $750. *520
Defendant on this appeal urges but two grounds for reversal, namely, excessive damages and error in the refusal of certain proposed instructions.
[1] The rule regarding damages is well settled in this jurisdiction to the effect that the matter of damages is one which must be left almost entirely to the determination of the trial court, and that reviewing courts will not interfere unless the verdict is obviously so disproportionate to the injuries received as to justify the belief that it is not the result of cool and dispassionate discretion of the jury. (Szasz v.Joyland Co.,
[3] The next phase of the appeal involves the matter of refused instructions. A proper consideration of the question necessitates a brief review of the facts. Plaintiff and defendant resided in adjoining homes, not the same building, however. The husband of the plaintiff was an aged man, a veteran of the Civil War and retired from active work. There seems to have been the usual neighborly intercourse between the families manifested in exchange of services looking to the improvement of the properties and in other similar contacts. Both defendant and his wife displayed some little interest in the aged husband and the latter would often spend his leisure time with them. As time went on the plaintiff became somewhat resentful toward this intimacy, particularly when she became informed of the fact that her husband was making small gifts of money to the defendants. There then arose a feud between the clans. Much bickering followed and finally an open rupture. The women of the household came almost into physical encounter on the premises of defendant, on which occasion the plaintiff was ordered to remain away from the home or property of defendant. At this time plaintiff sought counsel and as a result thereof she procured advice to the effect that the earnings of the husband during coverture were community property and that the husband had no legal right to dissipate or give away these earnings without the consent of the wife. She obtained from her counsel a notice of demand for the return of the moneys alleged to have been given by her husband to the defendants and on the day of the alleged assault or the night thereof, she again visited the house of defendant to serve upon the latter the prepared notice, which, to repeat, set up the fact of community ownership, a brief resume of the law, and her demand for the return of the money. This is the written demand hereinafter referred to as defendant's exhibit "A". It was on this occasion that the assault complained of occurred. The plaintiff's testimony, if believed, showed a violent assault. The defendant, on the other hand, *522 claimed that he gently led her off the premises, using some force only when and as plaintiff resisted removal and began an attack upon him. The evidence of injury offered by plaintiff was practically overcome by the testimony of her attending physicians and by other competent proof; also, for what purpose hardly discernible, it was before the jury that upon a criminal complaint against defendant he was acquitted.
With this picture of the controversy we can approach the instructions. The following instructions were offered and requested by defendant and refused:
A. "You are instructed that the paper served upon the defendant on March 11, 1927, by the plaintiff . . . is not a `legal paper or notice', and is not such a paper or notice as the law, in any case, would require to be personally served upon the defendant."
B. "You are instructed that if you find that the plaintiff had been notified by the defendant, or his wife, prior to March 11, 1927, that the plaintiff should thereafter keep off the property of the defendant, and that the plaintiff thereafter on March 11, 1927, went upon the property of defendant for the purpose of serving the paper, defendant's exhibit `A' upon the defendant, that such act of the plaintiff is not justified in law and was a trespass upon the property and rights of the defendant, and that the defendant, upon that occasion was justified in using reasonable physical force to eject the plaintiff from his property."
The last-quoted offered instruction practically embraced the first and therefore our discussion will be addressed to the said instruction. It is elemental that an owner of premises, such as are being discussed, to wit, his home, is justified in using reasonable force to eject trespassers. The doctrine of the law in this respect is quite fully discussed in the case of Walker v.Chanslor,
We think that the judgment should be reversed, and it is so ordered.
Sturtevant, J., and Spence, Acting P.J., concurred.