Bogue v. Gunderson

• Decision Date: 01 October 1912
• Parties: ALAN BOGUE, Plaintiff and respondent, v. T. I. GUNDERSON, Defendant and appellant.
• Court: South Dakota Supreme Court

30 S.D. 1, 137 N.W. 595 (1912)

ALAN BOGUE, Plaintiff and respondent v T. I. GUNDERSON,

Defendant and appellant

South Dakota Supreme Court

Appeal from Circuit Court, Yankton County, SD

Hon. Robert B. Tripp, Judge

Affirmed

L. L. Fletcher, I. W. Edmunds

Attorneys for Respondent.

French & Orvis

Attorneys for Appellant.

Opinion filed October 1, 1912

HANEY, J.

The complaint, alleging a malicious assault and battery, demands both actual and exemplary damages. It appears that the plaintiff, an attorney and counselor at law, who had resided in Centerville for 14 years, on the night of the general election in 1908, entered a drug store in that town, in company with a friend, to procure cigars. Several gentlemen were in the store, including the defendant, all of whom were acquainted with both parties to this action. According to the plaintiff's testimony, he was about to leave, when the defendant inquired how the election returns suited him. A discussion followed, in which the defendant accused the plaintiff of inconsistent political conduct and having been influenced by improper motives, and in which the defendant charged that the leaders of the Republican party in this state, to which the plaintiff belonged, were dishonest.

"Then something was said about people being honest again, and he says, 'Well, I am just as honest as any damned Bogue that I ever knew.' I says, 'Timis, I don't like to discuss personalities in a public place, but I have my suspicions of a man going around talking about his own personal honesty,' I said, 'and especially a man who would take the witness stand and swear that a flashboard on a dam was 18 inches wide, when it was only 12 or less.' And as soon as I said that he said, 'Don't you ever say that again.' I started in to reply, and didn't get halfway through the sentence when he jumped at me, and he hit me right on the left side of the head with his fist, struck me right on the ear, and the blow kind of knocked me over on the show case, and my hat fell down over it. He jumped back and started to pull off his coat, and three or four of the boys grabbed him. ... I stepped around behind the show case and picked up my hat. I said: 'Gunderson, I will give you a chance to pay for your fun here.' He says: 'That is all right. I have got plenty of money to pay for it.' I says: 'You will get a chance. You don't need to worry about that any.' And I went out on the street."

The plaintiff was allowed to testify over proper objections, that the defendant was interested in the election as a candidate for state senator on the Democratic ticket. The materiality of this evidence is not apparent. It might better have been excluded, but its admission was not reversible error. The fact it established, presumably known to all the jurors, could not have prejudiced any substantial right.

The plaintiff was allowed to state, over proper objections,

"Of course, under all the circumstances of the case, the place where this occurred, and before a lot of people, it was rather humiliating to be pounded over the head in the way I was pounded there, and it affects one's feelings in reference to his standing in the community. Under the circumstances in that case, it being a public place, and a great many of my friends there, it was humiliating to me in the extreme."

This argument as to the natural and obvious effects of the assault should not have been made by the plaintiff as a witness. It did not tend to establish any fact whatever--only inferences necessarily flowing from the facts to which the witness had previously testified. But, as it was an argument which might have been presented to the jury at the proper time, and merely suggested consequences, concerning, which there was no room for controversy, there was not such a departure from strictly correct rules of procedure as to constitute reversible error.

The contention that the court erred in allowing the plaintiff to make certain statements concerning property owned by the defendant is not tenable. Though the form of some of the questions and answers may have been objectionable, the plaintiff's testimony, in effect, merely tended to prove the defendant's reputed wealth; and such testimony is conceded by appellant to be admissible in this class of cases.

Nor is the contention tenable that the evidence did...