Yount v. Strickland

| Wyo. | May 29, 1909

Beakd, Justice.

The'defendant in error, who will be referred to as plaintiff in this opinion, brought this action in the district court of Laramie County, against the plaintiffs in error, who will be referred to as the defendants, to recover damages for an alleged assault and battery. The case was tried to the court without a jury, resulting in a judgment in favor of plaintiff and against defendants for $727.75 and costs, and they bring the case here on error.

The district court found the facts to be as follows:

“1. That plaintiff and defendants entered into a fight, probably by mutual consent, and that the court is unable to satisfactorily determine which struck the first blow.

“2. That in said fight the court finds that the defendant, Newton D. Yount, used excess of force in repelling the assault and force used by plaintiff, as hereinafter set forth, and that the defendant, Frances Yount, did aid, abet and assist him therein.

“3. That during the fight which ensued the said defendant, Newton D. Yount, did violently seize the left hand of the plaintiff and with his mouth and teeth did chew, masticate and lacerate one of the fingers of the left hand of the plaintiff, thereby severing the muscles, tendons, arteries and nerves of said finger, and .these facts the court finds constitute excess of force; and that the said defendant, Frances Yount, during the said fight, did stand by, aid, abet ánd assist said defendant, Newton D. Yount, in inflicting upon said plaintiff said injuries by striking the plaintiff, by assisting the defendant, Newton D. Yount, and by holding plaintiff down on the ground while the said defendant, Newton D. Yount, did commit said injuries upon the said plaintiff.

“4. That -by reason of the injuries to plaintiff’s said finger, as aforesaid, he was made ill, sick and disabled and unable to attend to his business thereafter, and was compelled to seek medical assistance and obtain medicines and medical attendance; and that the injury to his said finger was of such a nature that the plaintiff has been ever since, and will forever be, unable to use the said finger, the same having become stiff and permanently disabled.

“5. That said defendants are liable to the plaintiff for the injuries to his finger as aforesaid, but that no punitive damages should be allowed.

“6. That the plaintiff is entitled to receive from the defendants, as compensation for the injuries inflicted upon the plaintiff and for the loss of time, expenses incurred and medical attendance and medicines, the sum of $727.75; and that he is entitled to have entered a judgment against the said defendants for said sum, and to have execution therefor.”

The difficulty between the parties seems to have arisen over the location and attempted construction of a water ditch or lateral by Newton D. Yount, one of the defendants, over the land of the plaintiff. Aside from the contention that the findings and judgment are not sustained by the evidence and that the judgment is excessive, the chief ground of the complaint is that the court erred in admitting certain evidence introduced by the plaintiff and in refusing to admit certain evidence offered by defendants. The errors assigned in this respect are very numerous, and it would serve no useful purpose and would unduly extend this opinion to notice each separately. The court admitted a large amount of evidence on the part of plaintiff in relatiqn to location of the lands in the vicinity of the ditch over which the difficulty seems to have arisen, and of the roads, fences and water ditches in that locality, which appears to us as being immaterial and irrelevant to the issues except as tending in some degree to explain the cause of the trouble. The same may be said as to the admission in evidence of a map of the locality which was used by the witnesses to explain their testimony in reference to the location of the ditches, etc. The court allowed both parties great latitude in the introduction of evidence, and several times remarked in substance, when ruling, that he regarded the evidence of little consequence but he would admit it as he desired to understand the whole situation. While there would have been no error in excluding a large part of this evidence, the trial was to the court who was able to sift the wheat from the chaff; and we think the defendants were not prejudiced by its admission. It is also claimed that the court erred in permitting the plaintiff to testify to conversations between himself and Yount, prior to the affray, in relation to the location of the ditch. This evidence was competent as tending to prove whether the assault, if any was made, was the result of a sudden heat of passion or was premeditated and malicious. The plaiñtiff was asked on cross-exámination: “Are you the same Strickland that had a fight with Al Spencer and bit his finger?” To which question an objection was interposed and sustained. The ruling was correct, if for no other reason, because the question assumed the fact that defendant had had a fight with Spencer and bit his finger, a fact not appearing in evidence.

It is further urged that the court erred in permitting Mrs. Paddock, a witness on behalf of the plaintiff, to testify over the objection of the defendant, that shortly after the fight and on the same day she washed the blood from plaintiff’s hand and wrapped it up and telephoned for a doctor, and stated what she observed at that time as to other injuries to the plaintiff’s head and face, and to his appearance generally at that time, and also stated that for several days thereafter he suffered pain from his injuries. We think the evidence was properly admitted. It tended to show the character and extent of plaintiff’s injuries and had a direct bearing upon the amount of damages, if any, that he was •entitled to recover. It is earnestly contended that the findings and judgment are not supported by the evidence. The evidence was conflicting and the result of the case necessarily depended upon the question as to which party was telling the truth. The court evidently believed the plaintiff and disbelieved the defendants. He was the sole judge of the credibility of the witnesses and the weight to be given to their testimony, and his findings stand as the verdict of a jury and will not be disturbed where there is substantial evidence in the record to support it, as is the case here. The injury to the plaintiff’s finger was shown to be permanent, and we think the amount of damages awarded him was not excessive. It is apparerit from the evidence that the amount of damages allowed by the court, in addition to those allowed for loss of time, and expenses, was $500. This we think is not an unreasonable amount for the loss of the use of the finger. ■

From a careful consideration of all of the evidence in the case we are of the opinion that the record presents no prejudicial error, and the judgment of the district court will be affirmed.

Affirmed.

Potter, C. J., and Scott, J., concur.