Apostolos v. Chelemes

• Decision Date: 17 April 1931
• Docket Number: 5015
• Citation: 77 Utah 587,298 P. 399
• Court: Utah Supreme Court
• Parties: APOSTOLOS v. CHELEMES

298 P. 399

77 Utah 587

APOSTOLOS v. CHELEMES

No. 5015

Supreme Court of Utah

April 17, 1931

Appeal from District Court, Second District, Davis County; E. E Pratt, Judge.

Action by Chris Apostolos against James Chelemes. Judgment for plaintiff, and defendant appeals.

REVERSED AND REMANDED FOR NEW TRIAL.

E. A Rogers and Vere L. McCarthy, both of Salt Lake City, for appellant.

Joseph Chez, of Ogden, for respondent.

ELIAS HANSEN, J. CHERRY, C. J., and STRAUP, FOLLAND, and EPHRAIM HANSON, JJ., concur.

OPINION

ELIAS HANSEN, J.

This action is founded on a complaint, wherein it is alleged:

"That on the 18th day of August, 1928, on plaintiff's premises in Davis County, Utah, the defendant violently and maliciously assaulted and beat the plaintiff and struck him upon the head a violent and malicious blow with a shovel having a sharp edge, whereby defendant put plaintiff in fear for his life, knocking him down into an irrigation ditch flowing with water, whereby the plaintiff sustained severe cuts on his head and other parts of his body, causing him excruciating pain and making it necessary for him the plaintiff, to be taken to a hospital and confined in bed for many days, and disabled him from attending to his work on his farm, plaintiff thereby incurring medical and surgical expense and hospital expense in the amount of Three Hundred Fifty ($ 350.00) Dollars, and the plaintiff has, ever since and for a long time will be ill, and his hearing in one ear is completely destroyed and he has been permanently injured by defendant to his damage in the sum of Ten Thousand ($ 10,000.00) Dollars as compensatory damages, and the sum of Five Thousand ($ 5,000.00) Dollars as exemplary damages, and the sum of Three Hundred Fifty ($ 350.00) Dollars special making a total sum of $ 15,350.00 damages sustained by plaintiff, no part of which has been paid."

Plaintiff prayed for a judgment against the defendant for the sum of $ 15,350. Defendant denied generally the allegations of the complaint. Upon the issues thus joined, a trial was had before the court sitting with a jury. The trial resulted in the plaintiff securing a judgment against the defendant for $ 1,180.70 general damages, $ 500 exemplary damages, and $ 319.30 special damages. The defendant appeals. He seeks a reversal of the judgment upon the following grounds: (1) That the judgment is excessive; (2) that the trial court erred in refusing to admit certain evidence offered by the defendant; and (3) that the trial court erred in one of its instructions to the jury.

The evidence offered on behalf of the plaintiff tends to establish these facts: That the plaintiff is the owner of a farm located about one mile southwest of Clearfield, Davis county, Utah; that, at the time complained of, plaintiff had the right to the use of certain irrigation water which the defendant diverted to his own use; that, when plaintiff discovered that his irrigation water had ceased flowing, he went up the ditch to ascertain what had become of it; that as he approached the headgate where his water had been diverted, he heard the defendant say "You son-of-a-bitch I will kill you"; that the defendant was concealed in some weeds; that defendant struck plaintiff just back of the left ear with a shovel without any cause or provocation; that defendant then threw the plaintiff into an irrigation ditch, and with his knees and fists beat plaintiff all over his body, and tried to prevent plaintiff from breathing by holding his nose; that plaintiff succeeded in getting away from defendant and went home; that the defendant followed the plaintiff to his home; that plaintiff was so exhausted as a result of his struggle with, and the injury inflicted by, the defendant, that he did not have enough strength to get into his home without the assistance of his wife; that, as soon as plaintiff was within his house, his wife; that, as locked the door; that defendant tried to get into plaintiff's house, and, when he found the door locked, he swore and cursed and threatened to kill both the plaintiff and his wife; that plaintiff was put to bed and two doctors called to attend his injuries. One of the doctors thus described plaintiff's injuries:

"He was bleeding from the side of his head. * * * I looked at his wound and I noticed as near as I can describe it, directly over the mastoid, or behind the ear, he had been struck with something sufficiently hard so the external plate or mastoid process was standing at right angles to the process itself, exposing all the cells to the outside, full of dirt; hair wet, sandy, muddy; the soil was more sandy than mud; you could tell from his appearance considerable shock and no doubt a lot of pain."

The plaintiff was immediately taken to a hospital, where he remained for nine days. He was then taken to his home, but he was in such pain that after he had been at home for only a few hours he was again removed to the hospital, where he remained for treatment for an additional nine days. Soon after he was taken back to the hospital the second time his eardrum bursted. As a result of the injuries, plaintiff is totally deaf in the left ear. The evidence offered by plaintiff also tends to show that he was unable to do any labor for a period of sixty days after he was injured, and that he had not regained his former strength at the time of the trial. The costs of hospitalization and medical attention amounted to approximately $ 300.

Counsel for appellant at the oral argument and in their briefs laid considerable stress upon an incident which occurred during the course of the trial. While the plaintiff was testifying, he was asked to place his finger in his right ear. He did so. He was asked a number of questions to which he made no response. He was then asked, "You cannot hear a word I am saying, can you?" to which plaintiff responded "I cannot hear nothing." It is urged that, because the answer was responsive to the question, it necessarily follows that plaintiff was able to hear with the ear that he claimed was injured. The conclusion contended for does not necessarily follow. The fact that the answer was responsive to the question may have been a mere coincidence. There is ample evidence in the record to justify a finding by the jury that plaintiff lost the hearing in his left ear because of the injury complained of. A specialist on ear diseases who treated the plaintiff after his injury testified that he had used every known means to ascertain if the plaintiff was feigning deafness in his left ear, and that from all the tests which he applied the plaintiff had completely lost his hearing in his left ear. Upon this record the damages awarded to the plaintiff are justified by the evidence.

The defendant was called as a witness in his own behalf. He was asked to relate what occurred at the time plaintiff received the injury complained of. In response to the question, the defendant testified:

"Well I got ahold of his (plaintiff's shoulder with my right hand and left hand got ahold of that little post, I cannot get the shovel away from him; I climbed over his fence and I was trying to get that shovel away, swaying one side to the...