JOHN J. VAUGHN, Respondent, v. WILLIAM JONAS, Appellant.
S. F. No. 17618
In Bank
Mar. 31, 1948
April 29, 1948
The order granting letters of administration to the public administrator and denying letters to appellant is reversed.
Shenk, J., Edmonds, J., Carter, J., Traynor, J., Schauer, J., and Spence, J., concurred.
F. E. Hoffman for Respondent.
SCHAUER, J.----Defendant, avowedly in self-defense, shot and severely wounded plaintiff. Thereafter, having partially recovered from his wounds, plaintiff filed this action for damages; in it he contends that defendant acted not in self-defense but maliciously and without just cause. At the trial plaintiff prevailed; a jury awarded him $5,500 as compensatory and $4,500 as exemplary damages; defendant appeals from the judgment entered on the verdict. As grounds requiring reversal of the judgment defendant urges that the trial court erred to defendant‘s prejudice in the admission of certain evidence; in giving certain instructions concerning self-defense; in failing to give or in modifying certain other instructions relative to self-defense, requested by defendant; and in instructing the jury as to exemplary damages. It is also contended that the pleadings do not support the award of exemplary damages. We have observed that the evidence relevant to the issues of provocation, justification and malice or lack thereof, is sharply conflicting but after scrutiny of the entire record and consideration of all of the points urged, we have concluded that no prejudicial error is shown and that the judgment must be affirmed. The reasons for our conclusions become manifest in the discussion which follows.
On the day of the shooting, March 16, 1942, defendant owned and with his wife operated a bar and restaurant known as “Dick‘s Tower” and located in Brisbane, San Mateo County, California. The premises were also used as living quarters by defendant and his wife.
Plaintiff and two men companions entered the bar at about 1:15 in the morning. Each of the three ordered and was served beer. Plaintiff testified that they had visited other taverns during the night of March 15, and early morning of the 16th, and that he had drunk five to eight glasses of beer “all together.” The three carried the beer to a pinball machine “right next to the bar” and began playing the machine. On it were one or two small signs, apparently about 3 inches by 4 inches, which read “For amusement only, no pay-off.” The machine was so constructed and adjusted that if the player
Plaintiff‘s testimony as to the subsequent events leading up to the shooting is as follows: He put another nickel in the machine “but it wouldn‘t work, nothing would work anymore, the machine wouldn‘t pay-off the free games.” Plaintiff then told defendant the machine would not work and that “we wanted the money” and defendant “came out from behind the bar and put a nickel in it, and it wouldn‘t work for him either. He went back behind the bar again, and we started giving him a panning . . . [W]e started telling him it was a cheap place . . . we used a few swear words . . . I did use a certain amount of profane language.” Neither he nor his companions made “thrеats to break the machine, or wreck the place.” Defendant “didn‘t say anything at all” in response to plaintiff‘s profane language; he “was very quiet, and kept working and walking up and down behind the bar.” Plaintiff then noticed that “it was getting close to two o‘clock” and suggested to his two companions “Let‘s go.” Plaintiff‘s companions “walked out the doorway” and plaintiff “went in the men‘s room, lavatory” where he remained “only a minute” and then went outdoors to join the other two men in their car. Plaintiff “was just about to step in the car when” defendant called to him “from the doorway.” Plaintiff turned around and saw defendant “on the top step.” Defendant “asked me if I wanted to get paid,” and then said “Here‘s your pay you son-of-a-bitch” and shot plaintiff in the stomach. (The gun was shown to be a .38 calibre police special revolver.) Plaintiff stated that before the shooting he had engaged in various sports as аn amateur and as a professional and, in particular, that at the time of the altercation in question he was a professional boxer.
One of plaintiff‘s companions, John Mahoney, who was driving the automobile in which the three men had arrived at defendant‘s premises, corroborated plaintiff‘s story that after the three had gone outside following the argument, defendant shot plaintiff from the doorway of the bar just as plaintiff was “getting in the car” to leave. Over objection, plaintiff was also permitted to prove that in another court “the defend-
Defendant related the following account of the shooting: After plaintiff had stated that the machine was out of order and would not play off the free games, defendant told him “I am sorry I am not allowed to pay off cause it would be gambling . . . [T]hen . . . they became very violent, very abusive and used language that I wouldn‘t repeat here. They . . . threatened to break up the place, and called it a cheap joint and told me they would wreck this joint and told me they would get me too.” Defendant did not refuse to pay because of the amount of money involved, “it was my license, I never did pay off.” Defendant did not “go out from behind the bar at any time“; his wife “went over and showed them the sign.” Plaintiff and his companions were “About that time . . . loud and very threatening . . . Mr. Vaughn . . . had his hands on the bar and said, ‘You are going to pay me,’ ---as though he was coming over the bar, so I got away from them and went down to where the gun was, reached in . . . the drawer back of the bar, and stuck it in my belt so they could have seen it, I don‘t believe they did. I came back up and I stayed away from where they could reach me. My wife said, ‘I will call the sheriff‘s office.’ She went to the ‘phone . . . and said, ‘I have the sheriff‘s office.’ Just at that time I heard one of them say, ‘come on, let‘s get out of here.’ Then I said to my wife, ‘Hang up, they‘re leaving.’ . . . Mr. Vaughn turned around --- the three of them were together half way to the door and Vaughn turned around and threatened me. He said, . . . ‘I‘ll get you you son-of-a-bitch, you will wish you had paid off,’ . . . Well, they were very, very violent and did pull the machine out from the wall, picked it up and dropped it on the floor, and made a terrible racket. I didn‘t move as I thought they really meant what they said --- they were going to wreck the place there.” Defendant “put the gun in his belt at that time . . . in case they did come over the bar and I needed it for protection . . . [of] My property and my life.” The three men then left together by way of the front door and defendant “heard them start the car up . . . shift gears --- and when I was reasonably sure . . . they had driven away . . . I came from behind the bar and started to close the place.” As defendant was about to close the front door he “glanced out of the door and there was the car parked and a few feet this side of the car, between me and the car, was
Defendant‘s wife corroborated his testimony as to the events preceding the shooting. She testified further that after defendant shot, plaintiff “ducked and ran in a crouching position to the car . . . and got in the car, the door was shut and drove off. Mr. Vaughn didn‘t make a noise . . . and didn‘t fall. . . . Mr. Jonas and I didn‘t have any idea he had been hit.”
Ross Martin, a customer in defendant‘s bar when plaintiff entered it, testified that he heard the “argument” develop over the machine‘s “not paying off.” Plaintiff and his two companions “were cussing and said they were going to wreck the machine and joint . . . they pulled the machine from the wall.” The witness heard no threats against defendant personally. Mrs. Jonas went to the telephone back of the bar and the men left. Defendant then walked “leisurely” to the door to close it. The witness heard a “noise,” went to the door and saw a rock on the porch. Defendant brought the rock inside and said “they were going to throw the rock at him or did throw it I don‘t know which.” The witnesses Peter D. Cutney and Richard Trantham also gave testimony which tends to corroborate at least certain elements of defendant‘s version of the affray.
A pinball machine expert testified that on the afternoon of March 16 (the day of the shooting) he examined the designated pinball machine which was installed in Dick‘s Tower;
From the evidence as above related it is obvious that the area of its conflict is relatively small but that within its scope the clash is sharp. Thus, it may be said that substantially the sole, ultimate issue of fact was the question as to whether defendant in shooting plaintiff was actuated by reasonable apprehension or by malice. The evidence cannot be held to be as a matter of law insufficient to support a conclusion either way; we are bound, therefore, to accept the jury‘s determination of the issue. (Estate of Bristol (1943), 23 Cal.2d 221, 223 [143 P.2d 689]; Cate v. Certainteed Prod. Co. (1943), 23 Cal.2d 444, 448 [144 P.2d 335]; Estate of Teel (1944), 25 Cal.2d 520, 526 [154 P.2d 384]; Fackrell v. City of San Diego (1945), 26 Cal.2d 196, 207 [157 P.2d 625, 158 A.L.R. 625]; Viner v. Untrecht (1945), 26 Cal.2d 261, 267 [158 P.2d 3]; Pewitt v. Riley (1945), 27 Cal.2d 310, 313 [163 P.2d 873]; De Young v. De Young (1946), 27 Cal.2d 521, 526 [165 P.2d 457]; Millsap v. National Funding Co. (1944), 66 Cal.App.2d 658, 665 [152 P.2d 634]; Southern Calif. Freight Lines v. State Bd. of Equalization (1945), 72 Cal.App.2d 26, 29 [163 P.2d 776]; Berry v. Chaplin (1946), 74 Cal.App.2d 652, 663 [169 P.2d 442]; Medina v. Van Camp Sea Food Co. (1946), 75 Cal. App.2d 551, 556 [171 P.2d 445]; Seidenberg v. George (1946), 76 Cal. App.2d 306, 308 [172 P.2d 891]; see also cases reviewed in dissenting opinion in Isenberg v. California Employ. Stab. Com. (1947), 30 Cal. 2d 34, 46-48 [180 P.2d 11].) But in the light of the clash of the testimonies as noted we carefully consider the assignments of error.
Defendant urges three grounds for reversal, which he states as follows: 1. “The plaintiff‘s counsel was guilty of prejudicial misconduct and it was prejudicial error for the trial court to permit him to show that the defendant had pleaded guilty to a misdemeanor, to-wit, simple assault, because of the shooting“; 2. “The trial court deprived the defendant of a substantial defense by refusing to instruct the jury that, in the face of actual or apparent danger at the hands of the plaintiff, he could use not only such force as
1. It Was Not Error to Permit Plaintiff to Show That Defendant Had Pleaded Guilty to Simple Assault.
Over objection plaintiff elicited from defendant testimony that he had pleaded guilty to a misdemeanor assault based on the shooting. In explanation of the plea defendant also testified that following the shooting he first pleaded not guilty to a charge of assault with intent to commit murder; that on advice of counsel and with the assurance that he would be saved the expense of a jury trial and could later secure a dismissal of the charge under section 1203.4 of the Penal Code he subsequently pleaded guilty to a misdemeanor assault; that sentence on that plea was suspended, defendant was granted probation and thereafter the court granted his motion to withdraw the guilty plea and “to dismiss the entire action and set aside judgment.”
In the present case evidence of defendant‘s plea of guilty was not offered for impeachment purposes, however, but as an admission of a party against interest. Hence the problem of its admissibility differs from that in the Mackey case. That the record of such a plea, although not held by the court to be factually conclusive, “is an admission on the part of the defendant, and as such is admissible” against him in a civil action growing out of the same offense is established in this state. (Olson v. Meacham (1933), 129 Cal.App. 670, 675 [19 P.2d 527]; see also Fawkes v. Reynolds (1922), 190 Cal. 204, 213 [211 P. 449]; Burbank v. McIntyre (1933), 135 Cal.App. 482, 485-486 [27 P.2d 400]; Langensand v. Obert (1933), 129 Cal.App. 214, 218 [18 P.2d 725].) As stated in the last-cited case, at page 218 of 129 Cal.App., the record is admitted “not as a judgment establishing the fact, but as the deliberate declaration or admission against interest that the fact is so; in other words, a solemn confession of the very matter charged
2. The Instructions Pertaining to the Right of Self-Defense Unduly Limited That Right but the Error is not Shown to bе Prejudicial.
The burden of the court in reviewing this phase of the appeal is unnecessarily aggravated by the improper manner in which the record is made up. Each instruction should be identified by a number and should indicate by whom it was requested or that it was given by the court of its own motion; on each requested instruction the trial judge should endorse the fact as to whether it was given or refused or given as modified, with the modification, if any, clearly indicated. In the record before us the reporter‘s transcript sets forth in the form of a single instruction, covering approximately seven pages, a congeries of propositions of law which apparently was designed to encompass the entire charge given to the jury; there is in it no indication as to who requested statement of the many and varying principles of law therein declared; thereafter, under the heading “Instructions Requested by Plaintiff,” there is copied a group of instructions which in large part constitute but a repetition of the charge previously set forth; following this group is still another under the heading “Instructions Requested by Defendant.” Under this latter heading the matter copied is likewise in large part included in the unitary charge first mentioned. Whether the reporter simply copied the duplicated instructions twice or whether the trial judge read them twice is not stated. None of the requested instructions given, refused or modified bears an identifying number and none of those marked modified indicates how or in what respect it was modified.
Since 1872, it has been the law and the accepted practice of judges and lawyers that “Where either party asks special instructions to be given to the jury, the court must either give such instruction, as requested, or refuse to do so, or give the instruction with a modification, in such manner that it may distinctly appear what instructions were given in whole or in part.” (
Concerning the right of one to defend his person, family, and property against unlawful attack the court instructed as follows:
“The burden of proof to establish self-defense is always with the defendant, and he must show that he used no greater force than was necessary to repel the alleged attack of the plaintiff, if you so find that plaintiff did attack the defendant.
“You are instructed that acts done in self-defense alone are not assaults. A person cannot assault another in self-defense; and any acts done in self-defense cannot be an assault.
“Provocative acts, conduct, former insults, threats, or words, if unaccompanied by any overt act of hostility, do not justify an assault or battery no matter how offensive or exasperating, nor how much they may be calculated to excite or irritate one.
“Section 50 of the Civil Code of the State of California provides as follows:
“‘Any necessary force may be used to protect from wrongful injury, the person or property of one‘s self, or of a wife, husband, child, parent or other relative, or member of one‘s family, or of a ward, servant, master or guest.’
“However, I instruct you that the right to use force to protect one‘s person, or the person of another is always limited by the condition that the force used must be no more than is reasonably adequate and necessary to the occasion.
“You are instructed that thе right of the defendant to use force upon the plaintiff at the time and place in question did not depend upon the question whether the plaintiff actually intended or attempted to inflict serious injury upon the defendant or his wife. If the circumstances as they appeared to the defendant were such that a reasonable person in the position of the defendant would be justified in believing that the plaintiff had the present ability to inflict serious injury upon him or his wife and that the plaintiff intended to do so, then you are instructed that the defendant was justified in using such force as was reasonably necessary to defend the person of the defendant, his wife, or his property.
“You are instructed that if you find from the evidence
that the plaintiff was advancing toward the defendant with a large stone or piece of concrete in his hand and if you further find from the evidence that the defendant was in or upon his own premises and that the circumstances were such as to justify a reasonable man in the position of the defendant in believing that the plaintiff had the present ability and intention to inflict serious injury upon the defendant or his wife, then, the defendant was entitled to remain standing where he was and was entitled to use such force as was reasonably necessary to protect himself and his wife from injury, and under such circumstances, there was no duty on the part of the defendant to retreat.”
By a process of comparing, sentence by sentence, the unitary charge with the instructions grouped under the headings “Instructions Requested by Plaintiff” and “Instructions Requested by Defendant” we have ascertained that certain portions of the above-quoted instruction are identical in substance with instructions which were requested by plaintiff and other portions of the charge are the same as certain instructions which were requested by the defendant. We have shown аbove in italics the portions which duplicate the requests by plaintiff and in plain type those which may be attributed to defendant. It also appears that the two sentences “You are instructed that acts done in self-defense alone are not assaults. A person cannot assault another in self-defense; and any acts done in self-defense cannot be an assault” are identical with two sentences in an instruction proposed by the defendant and reading in its entirety as follows:
“The plaintiff seeks to recover from the defendant for an alleged assault by the use of a gun. *[You are instructed that acts done in self-defense alone are not assaults. A person cannot assault another in self-defense; and any acts done in self-defense cannot be an assault.] Therefore, if you find from the evidence that the plaintiff was advancing toward the defendant with a piece of concrete in his hands at the time of the shooting under such circumstances that a reasonable person in the situation of the defendant would have reasonable grounds for believing that the plaintiff intended to attack and injure the defendant with said piece of concrete, and if you further find from the evidence that the defendant at said time was acting in defense of his person at the time he fired the gun and that there were reasonable grounds for believing
that the firing of said gun was reasonably necessary for his defense, then, if you so find, your verdict shall be in favor of the defendant and against the plaintiff.”
It further appears that the court refused the following instruction requested by defendant:
“You are instructed that the question whether the defendant was justified in shooting the plaintiff does not depend on whether he intended to shoot at the plaintiff or at the ground, but on whether the circumstances, as they аppeared to the defendant, were such that a reasonable person in the position of the defendant would have apprehended that he was in imminent danger of sustaining serious injury at the hands of the plaintiff. If you find from the evidence that the circumstances, as they appeared to the defendant, were such that a reasonable person in his position would have been justified in concluding that he was in such danger, then you are instructed that in using all the force reasonably necessary to prevent such injury, the defendant incurred no civil liability to the plaintiff; and if you further find from the evidence that a reasonable person in the position of the plaintiff [sic] would have been justified in concluding that it was reasonably necessary for his protection either to fire said gun at the ground or at the plaintiff, then you are instructed that under such circumstances the defendant is not liable in damages to the plaintiff for either aiming and firing said gun at the ground or at the plaintiff.”
Defendant urges that he was entitled to the requested and refused instructions on the ground that the jury were not otherwise specifically or adequately informed that the amount of force which he was permitted to use to repel the claimed attack upon himself and his wife was that which under the circumstances would appear reasonably necessary even though such force might have been greater than actually was reasonably required. Particular complaint is made of the fact that in the charge which it did give the court specifically told the jury that defendant “must show that he used no greater force than was necessary to repel the alleged attack” and that “the right to use force to protect one‘s person, or the person of another is always limited by the condition that the force used must be no more than is reasonably adequate and necessary to the occasion.” The two last-quoted statements are clearly erroneous and should never be given. The right of self-defense is not limited by actualities. The
The error pointed out would not necessarily have been entirely cured by giving in full the instructions which the defendant requested and which were refused in whole or in part; such refused instructions go little or no farther toward elucidating the point in question than the statement which the court did give that “the right of the defendant to use force upon the plaintiff at the time and place in question did not depend upon the question whether the plaintiff actually intended or attempted to inflict serious injury upon the defendant or his wife. If the circumstances as they appeared to the defendant were such that a reasonable person in the position of the defendant would be justified in believing that the plaintiff had the present ability to inflict serious injury upon him or his wife and that the plaintiff intended to do so, then . . . the defendant was justified in using such force as was reasonably necessary.” (Italics added.) The last-quoted statements, which are correct as far as they go, are to that extent inconsistent with the earlier (erroneous) ones on the same subject. “Inconsistent instructions have frequently been held to constitute reversible error where it was impоssible to tell which of the conflicting rules was followed by the jury. [Citations.]” (People v. Dail (1943), 22 Cal.2d 642, 653 [140 P.2d 828]; People v. Peterson (1946), 29 Cal.2d 69, 79 [173 P.2d 11]; People v. Sanchez (1947), 30 Cal.2d 560, 570 [184 P.2d 673].) Here, however, it does not seem reasonably possible that the jury were misled by the error in question to defendant‘s prejudice. From the verdict awarding punitive damages it appears that the jury necessarily found that the defendant acted maliciously. Exemplary damages, under the instructions given on that subject, could not have been awarded unless the jury found that the shooting was actuated by malice; if it was actuated by malice it was unjustified on any theory. (See 40 C.J.S. 1003.) We do not find any persuasive basis for believing that the finding as to malice was influenced to any extent whatsoever by the erroneous
3. The Issue as to Malice, With Punitive Damages Based Thereon, Was Properly Submitted to the Jury.
The burden is on the appellant in every case affirmatively to show error and to show further that the error is prejudicial; likewise, the presumptions declared in
Defendant‘s claim of error in relation to the award of exemplary damages is based on the proposition that the plaintiff‘s complaint does not expressly plead malice or pray for such damages. The only allegation of such complaint which is claimed by plaintiff to charge malice is the averment that on the 16th day of March, 1942, “defendant wrongfully, unlawfully and violently assaulted the plaintiff by firing at plaintiff a loaded revolver, the bullets from which passed through plaintiff‘s abdomen . . . causing serious and severe wounds . . .” However, in the answer filed by defendant it is specifically pleaded that immediately preceding the shooting, the plaintiff “ran toward defendant and his wife with a rock weighing about sixteen pounds in his hands, and at the same time threatened to strike and kill the defendant and his wife with said rock . . . That . . . in self-defense, defendant discharged said pistol in the direction of the plaintiff . . . That defendant in necessary defense of his body and
The record further discloses that plaintiff requested that the jury be instructed that “If, under the courts instructions, you find said plaintiff entitled to a verdict, in addition to the special and exemplary damages you may award him,” etc.; that he requested an instruction reading, “I instruct you that if you find that the defendant made any statements at the time he committed the act of shooting the plaintiff, if you find he did shoot him, then you may consider any language used by him at the time of the shooting as bearing upon the question of his malice in shooting plaintiff“; likewise, it also appears that the plaintiff requested the following instruction:
“I instruct you that Section 3294 of the Civil Code of the State of California provides as follows:
“‘In an action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, expressed or implied, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.’
“Under the provisions of this code section it is the rule that a jury may allow punitive damages if they believe from the evidence that a malicious intent exists. Evidence of the language used, if any, at the time of the assault, may be considered by the jury in determining the issuе as to whether or not the defendant acted maliciously.
“In the event that you find that the defendant shot the plaintiff maliciously then the amount of exemplary damages you may award plaintiff is in your discretion. I further instruct you that the condition of the plaintiff subsequent to his injury may be taken into consideration by you in determining the amount of exemplary damages, providing the case is a proper one for the granting of such damages.” The substance of the above-quoted requested instructions (with some changes which are immaterial to this discussion) appears to have been included in the charge which was given.
Concerning the instructions pertaining to exemplary damages defendant says: “These instructions were prejudicially
It is obvious that the plaintiff in pleading that “the defendant wrongfully, unlawfully and violently assaulted the plaintiff by firing at plaintiff a loaded revolver, the bullets from which passed through plaintiff‘s abdomen and other parts of his body, causing serious and severe wounds to plaintiff” (italics added), has actually pleaded a battery1 (
In this connection it is also to be noted that the sole defense pleaded by defendant (the substance of which is hereinabove quoted) is self-defense. This is an affirmative defense which is deemed controverted (
A defect in a complaint may be cured, as against attack on appeal, by an answer which tenders the otherwise un-
Defendant argues, however, that since the complaint neither expressly alleges malice nor specifically mentions exemplary damages, he was taken by surprise when the issue as to such damages was submitted to the jury. In the state of the record shown we find some justification for counsel‘s argument but not grounds for sustaining it on appeal. The record independently of the pleadings, as well as in conjunction with them, tends to show that the case was tried on the theory that malice was an issue as a basis for exemplary damages. The testimony as to the dispute between plaintiff and defendant over thе former‘s demand for cash payment of his winnings at the marble game furnishes a background from which ill feeling can be inferred; the testimony of plaintiff that defendant as he fired the wounding shot said, “Here‘s your pay you son-of-a-bitch,” tends to negate the theory of self-defense and to establish that the act was malicious. The very fact that plaintiff was shot, at close range, in the abdomen rather than in the foot or a limb may well have been deemed significant on the issue of malice. As hereinabove shown, the allegations of the answer, regardless of the sufficiency of the complaint, disclose that the controlling factual issue to be litigated was the question as to whether defendant in shooting plaintiff acted justifiably or maliciously. The pleadings therefore, whether viewed alone, together, or in the light of the evidence adduced, justified the proposal of instructions covering the effect оf malice. The requested instructions which touch upon the subject of malice all relate likewise to the subject of exemplary damages.
The court, in giving the instructions proposed by plaintiff on the subject of exemplary damagеs based on malice as an element of the case, is not to be presumed to have gone beyond the issues made by the parties. (
The evidence hereinabove reviewed is consistent with the view that the case was tried on the theory that malice was at issue and that punitive damages were claimed. A party cannot permit an issue to be litigated and on appeal escape the consequences by claiming that such issue was not pleaded. (Slaughter v. Goldberg, Bowen & Co. (1915), 26 Cal.App. 318, 325 [147 P. 90]; Boyle v. Coast Improvement Co. (1915), 27 Cal.App. 714, 720-721 [151 P. 25]; Hirsch v. James S. Remick Co. (1918), 38 Cal.App. 764, 767 [177 P. 876]; Pioneer Truck Co. v. Hawley (1920), 47 Cal.App. 594, 595 [190 P. 1037]; McCord v. Martin (1920), 47 Cal.App. 717, 723 [191 P. 89]; Avakian v. Noble (1898), 121 Cal. 216, 219 [53 P. 559]; 8 Cal. Jur. 893.)
Defendant urges that the evidence which shows malice was admissible as relevant to some other issue in the case, and, hence, that his failure to object to such evidence cannot be held to indicate acquiescence in the trial of the issue of malice as a basis for the award of exemplary damages. He cites Lorenz v. Hunt (1928), 89 Cal.App. 6, 15 [264 P. 336], wherein the court says, “The complaint contains no allegation of oppression, fraud or malice on the part of defendant nor any demand for exemplary damages. There is no basis, therefore, for the award of punitive damages. (8 Cal. Jur. 894.) It is true that there is sufficient evidence. to show malice and the court found that the defendant‘s assault upon the plaintiff and her arrest by him were malicious and oppressive, but it cannot be held that the case was tried upon the theory
As to defendant‘s complaint regarding the failure of the trial court to instruct the jury on the legal significance of the word “malice,” little comment need be made beyond the observation that defendant failed to request any such instruction. Malice is a word in common usage and since, as shown above, malice was an issue in the case, it was defendant‘s duty, if he wished to have the term defined to the jury, to prepare and present a proper definitive instruction. (24 Cal.Jur. 824, § 90.)
For the reasons above stated we conclude that no prejudicial error has been established; accordingly, the judgment is affirmed.
Gibson, C. J., Carter, J., and Traynor, J., concurred.
SPENCE, J.-I dissent.
If the judgment herein had not included an award for $4,500 as exemplary damages but had consisted only of an award of $5,500 as compensatory damages, I could agree that such judgment for compensatory damages only should be affirmed. The pleadings here, however, contained neither an express allegation of “oppression, fraud, or malice” (
In Lorenz v. Hunt, 89 Cal.App. 6 [264 P. 336], the court said at page 15: “The complaint contains no allegation of oppression, fraud or malice on the part of defendant nor any demand for exemplary damages. There is no basis, therefore, for the award of punitive damages. (8 Cal. Jur. 894.) It is true that there is sufficient evidence to show malice and the court found that the defendant‘s assault upon the plaintiff and her arrest by him were malicious and oppressive, but it cannot be held that the case was tried upon the theory that the question of punitive damages was in issue, because the evidence tending to show malice and oppression was admissible in support of the allegation of actual damages.”
The situation presented in the cited case cannot be distinguished from that existing here. The mere fact that plaintiff may have proposed instructions on exemplary damages at some time during the trial cannot, in and of itself, be made the basis for the claim that the case was tried upon the theory that the question of exemplary damages was in issue. In my opinion, the case of Lorenz v. Hunt, supra, correctly sets forth the rules governing the circumstances under which exemplary damages may be awarded, and it should be followed rather than disapproved.
Shenk, J., and Edmonds, J., concurred.
Appellant‘s petition for a rehearing was denied April 29, 1948. Shenk, J., Edmonds, J., and Spence, J., voted for a rehearing.