Carmody v. Trianon Co.
| Decision Date | 25 January 1941 |
| Docket Number | 27941. |
| Citation | 7 Wn.2d 226,109 P.2d 560 |
| Parties | CARMODY v. TRIANON CO. et al. |
| Court | Washington Supreme Court |
Department 2.
Action by Robert G. Carmody against the Trianon Company and others for assault and battery. Judgment for plaintiff, and defendants appeal.
Affirmed.
Appeal from Superior Court, King County; Clay Allen, Judge.
Patterson & Ross, of Seattle, for appellants.
Will G Beardslee and George F. Ward, both of Seattle, for respondent.
Plaintiff brought this action to recover damages for assault and battery. A trial to a jury resulted in a verdict in his favor for $7,500. The defendants moved for a new trial, and the court ordered the verdict reduced to $4,000 or, in the alternative, that the motion be granted. Plaintiff consented to the reduction, and the motion for a new trial was denied. From the judgment entered in the lesser amount, the defendants have appealed.
In the language of their brief, 'the principal contention on the part of appellants is that the verdict of the jury was due to passion and prejudice, and to such an extent that the appellants should be granted a new trial.' They also state, however, that, in any event, $4,000 is an excessive award and should be further reduced. Appellants' only other contention is that the trial court erred in giving instruction No. 15.
The corporate appellant, the Trianon Company, operated a public dance hall in the city of Seattle. Appellant John Savage was president of the company and manager of the dance hall appellant Ted Harris was assistant manager, and appellant Milner was doorman and tickettaker. (As there will be no occasion to mention either appellant wife in this opinion for convenience, John Savage, Ted Harris, and Warren H. milner will be referred to as if they were the only appellants.)
The facts necessary to an understanding of the questions presented for determination, as the jury could have found them from the testimony of respondent and his witnesses, may be summarized as follows:
On September 15, 1938, at about 10 o'clock p. m., respondent, who was then twenty-two years of age, entered the Trianon dance hall after paying the required admission fee. Dancing was then in progress, and several hundred people were in attendance. Shortly thereafter, appellant Savage seized the respondent by the arm, accused him of 'sneaking in,' twisted his arm behind him, and proceeded to eject him through the main entrance. Appellant Milner, joining in the ensuing scuffle at the entrance doorway, 'jumped on' respondent from behind. Respondent felt a burning sensation in his back, and saw a knife in Milner's hand. He tried to dash past Milner, but the latter struck at him with the knife and stabbed him in the stomach. Appellant Harris then tackled the respondent and threw him to the floor of the lobby. Some bystander pulled appellant Harris off, and respondent then got up and went out to the sideewalk. Thereafter, appellant Savage came out and chased respondent down the street, hitting him on the head with a monkey wrench. Appellant Harris joined in the chase, but the respondent eluded his pursuers and boarded a street car. When he reached home, his mother called in a doctor, and respondent was taken to a nearby hospital, where he remained for about ten days. After he came home, he was 'laid up' until November 19th.
There was sharp conflict in the testimony as to the circumstances of the altercation in the dance hall. According to appellants' witnesses, respondent had made a nuisance of himself around the Trianon for some time prior to September 15th by repeatedly attempting to surreptitiously enter the hall without the payment of admission. (Respondent admitted that, on one prior occasion, he had been ejected after such an entrance.) The witnesses for appellants further testified that respondent had entered without paying admission on the night of September 15th, and, when requested to leave, had viciously assaulted appellants Savage and Milner; that Milner, who was then seventy-five years of age, had not stabbed respondent, nor had any of the other appellants done so, and none of them had used any more force than was necessary to get respondent out of the dance hall and to defend themselves from his attacks. However, it was the province of the jury to pass upon the credibility of the witnesses whose testimony was thus directly in conflict. There was ample evidence to support a verdict for the respondent.
Respondent and his attending physician were the only witnesses who testified regarding the nature and extent of the respondent's injuries. The physician stated that, when he was called to the Carmody apartment, on the night of September 15th, he found the respondent there with two stab wounds on his person, one, about five inches long, on the left side of his back near the shoulder blade, which wound extended down through the flesh until it was stopped by the rib; and the other, a ragged cut on the left side of respondent's abdomen which extended through the abdominal wall and the 'outer layer of his small intestine.' Respondent's condition was then rather critical from loss blood, and it was necessary to administer salt solution intravenously to strengthen his pulse Before taking him to the surgery to suture his wounds. The physician testified that he had again examined respondent about a week Before the trial. The scar on respondent's back then seemed to be well healed and showed only as a red mark, but the scar on his abdomen, which was 'elliptoid shaped,' about four inches long and two and a half inches wide at the widest point, was 'composed practically entirely of scar tissue.' The witness expressed the opinion that this scar tissue was not capable of standing a heavy strain, and that any such strain might result in a ventral hernia, or rupture of the abdomen, in the area of the scar. He further stated that this condition would be permanent, as the scar would never be any stronger.
Respondent testified that, prior to September 15, 1938, he had worked as a truck driver, receiving an average wage of $1 an hour. He did not go back to work after leaving the hospital until June 1, 1939; but, during the preceding April and May, he went on an extended hitchhiking tour around the country, in the course of which he visited the World's Fairs in New York and San Francisco. Respondent stated that, Before his injuries, he was capable of earning $8 a day; whereas afterwards, his earning capacity had been reduced to $5.75 a day. He admitted, however, that, during the year 1938, prior to September 15th, his average earnings were $100 a month, but that, for eight weeks immediately preceding the trial, he had been employed for an average of five days a week at a wage of $5.75 a day. Describing his own condition at the time of the trial, respondent said:
Respondent's doctor bill was $178, and his hospital expenses were $65.
Appellants offer no affirmative showing of passion and prejudice on the part of the jury. They assert that the amount of the verdict indicates passion and prejudice, as the trial court, in effect, found in passing upon the motion for a new trial; and that the entire verdict should therefore be set aside, because the appellants 'are entitled to a verdict uninfluenced' by passion and prejudice.
This argument is manifestly based upon a misconception of the trial court's purpose in reducing the verdict. In passing on the motion for a new trial, the court found, in effect, that, under the evidence, the verdict was too large to fairly compensate the respondent for his injuries and damage. From the circumstance that the verdict was too large, the court drew the inference that it was influenced by passion and prejudice, and, consequently, ordered a reduction to the proper...
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Kloepfel v. Bokor
...presumed that severe emotional distress was suffered. An analogous example can be found in this court's decision in Carmody v. Trianon Co., 7 Wash.2d 226, 109 P.2d 560 (1941). Carmody upheld an award of damages for mental anguish without requiring direct proof of the mental anguish because ......
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Johnson v. Sartain
...a restaurant frequented by defendant, in the presence of at least one employee of the restaurant, the cashier. Cf., Carmody v. Trianon Co., 7 Wash.2d 226, 109 P.2d 560; Maisenbacker v. The Society Concordia, supra, 71 Conn. 369, 42 A. 67; Root v. Sturdivant, 70 Iowa 55, 29 N.W. 802; Beaucou......
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Sutton v. Tacoma Sch. Dist. No. 10, Individually
...that severe emotional distress was suffered.” 149 Wash.2d at 202, 66 P.3d 630. The court cited with approval Carmody v. Trianon Co., 7 Wash.2d 226, 109 P.2d 560 (1941), where the court upheld an award of damages for mental anguish caused when the plaintiff was physically beaten without requ......
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Gephart v. Stout
... ... deportment at the trial in the presence of the jury, ... counsel's remarks were not improper. Carmody v ... Trianon Co., 7 Wash.2d 226, 109 P.2d 560. And it would ... seem to be a far-fetched conclusion that, standing alone, ... ...