Cook v. Doud

• Decision Date: 25 April 1890
• Citation: 14 Colo. 483,23 P. 906
• Parties: COOK v. DOUD.
• Court: Colorado Supreme Court

23 P. 906

14 Colo. 483

COOK v. DOUD.

Supreme Court of Colorado

April 25, 1890

Appeal from district court, Arapahoe county.

Defendant Cook, sent word to plaintiff, Doud, that a party wished to speak with him at a certain hotel in the city. Plaintiff repaired to the place appointed, and was immediately assaulted by defendant, in the presence of several by-standers, with a raw-hide riding whip, receiving blows upon the head, shoulders, face, and back. Plaintiff clinched with defendant. A short struggle ensued, when plaintiff was thrown to the floor, and there held by defendant until others interfered, and put an end to the affray. It is unnecessary to embody anything further in the statement of facts, save the following extracts, which form the basis of the opinion from the argument of Mr. Patterson, counsel for defendant in the court below: 'Gentlemen of the jury: As I suggested in the opening statement, no man of ordinary, common experience in the affairs of this world will hesitate to conclude but that there was an antecedent to that affair and, although it is the law in this state that we should not be permitted to show what that antecedent was, I will always believe that it should be the law, and, if it is not, then a law should be made. * * * It seems to me, gentlemen, that, if counsel for plaintiff in this case desired to secure for him a large roll of greenbacks, as a poultice to his wounded feelings, out of the pocket of Mr. Cook, that these men would have said, when we offered to show what transpired upon the part of the man towards Cook before the happening of this affair,--they would have said: 'Yes, if there is anything.' * * * And, therefore, gentlemen of the jury, I have a right to say, as I do say, that it would have been more manly if, instead of these gentlemen constantly saying 'I object, I object, I object,' when we offered to prove the relation that existed between the parties before the morning of the 10th of May, if they had said: 'Yes, we feel that Mr. Doud was without fault in this matter, and we have no objection to having his conduct investigated, and everything in connection with this transaction laid bare.' But, gentlemen of the jury, they did not see fit to do it, and, presenting Mr. Doud before you in this way, they say to you that they expect you to commence on the morning of May 10th; that they do not propose to have you investigate for a single moment any act or course of conduct on the part of Mr. Doud towards Mr. Cook before that time. * * * I say, gentlement of the jury, that, when they come into court in this light, they come into court under false pretenses. They attempt to make the jury believe that their client was without fault; that it was, in the language of the attorney who addressed you, a brutal and unprovoked assault. Yet at the same time, when we offered to lift the veil for the purpose of showing what preceded it, they object, and the court sustained them; and, in the face of this record, they say you must go on the theory that Doud was blameless, as guiltless as an infant, and has done nothing whatever to warrant this assault upon him. I say that sort of an argument and that sort of procedure is a fraud upon the jury, and a fraud upon the court, and should have no influence upon the jury except to induce them to turn their faces against a proposition that is as bald and unwarrantable as this. * * * No, gentlemen of the jury. To my mind, this is as evident and plain a transaction as ever passed before my mental vision,--the conduct of this man, goading Mr. Cook on to the step that he took. * * * How are you to determine how this man's feelings were injured? How do you know anything about them? They would not let us prove anything about them. * * * He does not come before you honestly. He did not present his case to you in a friendly way. He does not lift the curtain, and let you see his inside. He does nothing but smuggle himself in. He says: 'I claim the protection of the law, and will not let the jury see anything that antedated this affair on the 10th. * * * Talking about the indignities that have been heaped upon a member of the legal profession, I do not believe that a scheme of this sort could win. In view of the fact, gentlemen, that they themselves closed the door to investigation, that they themselves put a bar across the entrance, that they themselves refused to allow this jury to know what the course of conduct of this man Doud towards Cook has been; to say whether or not this was a case in which he was driven by persecution to show his displeasure, and to give this man to understand that a better course of conduct would be better for him in the future. One of the witnesses said that Cook said to him: 'If you promise to behave in the future, I will let you up.' Another said he declared this man had cheated him out of five hundred dollars. Another of them said that Mr. Cook said he would not be hounded by any cur of a lawyer, and scarcely a word of protest out of the mouth of this man Doud. It shows that there is something behind it and around it that these people are closing out, and they want to get a verdict upon a mere technicality; and that would be a disgrace to justice, if the true relation of these men could be made to appear. * * * The court says that you, gentlemen of the jury, are the sole judges of what this amount should be; and I have no hesitation in saying, from what has crept out,--the declarations of Cook at the time, charging this man with pursuing and persecuting him, the fact that they must shut the door, and put a bar across the entrance so that you could not see what the real matter was,--all go to justify me in asserting that one cent would be ample damages, because it carries with it the heavy expense of this trial.'

Patterson & Thomas, for appellant.

A. L. Doud, pro se.

HELM C.J., ( after stating the facts as above.)

The present action is for damages growing out...