Dahlen v. Landis, 9973

• Decision Date: 22 December 1981
• Docket Number: No. 9973,9973
• Citation: Dahlen v. Landis, 314 N.W.2d 63 (N.D. 1981)
• Parties: Ardell DAHLEN, Plaintiff and Appellee, v. Philip LANDIS, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 63

314 N.W.2d 63

Ardell DAHLEN, Plaintiff and Appellee, v. Philip LANDIS, Defendant and Appellant.

Civ. No. 9973.

Supreme Court of North Dakota.

Dec. 22, 1981.

DePuy, Kopperud, Goulet & Hall, Grafton, for plaintiff and appellee; argued by Wallace R. Goulet, Jr., Grafton.

Shaft, McConn, Fisher & Thune, Grand Forks, for defendant and appellant; argued by John G. Shaft, Grand Forks.

PEDERSON, Justice.

Ardell Dahlen sought compensatory and punitive damages for personal injuries he received during an alleged roadside altercation with Philip Landis. Landis claims that he acted only in self-defense. The jury awarded Dahlen $67,800.00. Landis moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. Landis appealed from the order denying his motion. We affirm.

When the altercation occurred, Dahlen was a 39-year-old farm laborer, 5'11 tall. He weighed approximately 220 pounds. Landis, a farmer, was 44 years old, 5'9 tall, and weighed approximately 175 pounds. Somewhere in the background was a disputed claim by Dahlen that Landis owed him $75.00 in past due wages. Two Inkster area farmers, Ray Durkin and Tom Durkin, played minor roles in this saga.

On the night in question the two men, by happenstance, met at the Inkster Bar. According to Dahlen, Landis sprung from his bar stool as Dahlen walked by and "mumbled a bunch of words, something about wages." Dahlen testified that he became "quite scared" and suggested that they make a phone call to Ray Durkin to settle the wage dispute peacefully.

Landis, on the other hand, says that Dahlen approached him in the bar and brought up the subject of wages, and that Landis, not Dahlen, suggested the telephone call to Ray Durkin. Landis testified that Dahlen "told me he could take care of me." A witness called by Landis testified that Dahlen boasted to him of his ability to beat up Landis "anytime that he wanted to." In any event, there was no physical contact between Dahlen and Landis in the bar. After several phone calls the two men left the bar, and together headed easterly out of Inkster in Landis's pickup.

Dahlen said that a mile and one-half outside Inkster, Landis stopped the pickup on the edge of the road and ordered him to get out. Dahlen claimed that he "had no idea" why they stopped. He testified that he was standing near the side of the road when Landis delivered a "smashing blow" that knocked him into the ditch. Dahlen said that he tried to get up but Landis came after him "like a raging storm," screaming profanities and kicking and hitting him, perhaps 20 times. Dahlen testified that he feared for his life and begged Landis to stop. Finally, in Dahlen's words, the beating ended when Landis ordered him to stand up or face "more of that same punishment." Dahlen says he got back into the pickup, and Landis then drove several miles to Tom Durkin's farm where Dahlen was required to apologize to Durkin and "parade" in front of the headlights in order to show Durkin his injuries.

In contrast to Dahlen's contention that there was "very, very little conversation" in the pickup as they left the Inkster bar, Landis testified that Dahlen "hollered" at him and called him names. Landis and his wife, who spoke with her husband on the business band CB radio, both testified that Dahlen's protestations interfered with their conversation. Landis claimed that he stopped the pickup after Dahlen had threatened him. Landis explained that he jumped from the truck because he thought Dahlen "was gonna beat me up right in the cab." Landis claimed that he struck Dahlen only once in self-defense, out of fear.

After Dahlen and Landis returned to Inkster, Dahlen drove his own pickup to Fordville where he telephoned the sheriff. At four o'clock the next morning Dahlen's uncle brought him to United Hospital in Grand Forks. Dahlen was hospitalized for nine days with a broken nose, broken finger, two broken ribs, black eyes and bruises on his arms, left hand, and shins. Medication for relief of pain and anxiety was prescribed.

Dahlen, who testified to a painful recovery, said he wore a "rib belt" for 30 days after his discharge from the hospital. He still had pains in his chest and was taking medication for anxiety at the time of the trial. Dahlen also testified that his endurance had greatly diminished, though he was engaged in farming activities at the time of trial. Dahlen said that he was humiliated and embarrassed by the assault.

The jury awarded Dahlen $2,800.00 in special damages (hospital, doctor, medical bills), $20,000.00 in general damages (pain, suffering, inconvenience, embarrassment and humiliation), and $45,000.00 in punitive damages.

I.

A motion for judgment notwithstanding the verdict, made pursuant to Rule 50(b), NDRCivP, does not go to the weight of the evidence. Such motion should not be granted unless the moving party is entitled to judgment as a matter of law. Vasichek v. Thorsen, 271 N.W.2d 555, 559 (N.D.1978); Chicago, M., St.P. & P. RR. Co. v. Johnston's Fuel Liners, 130 N.W.2d 154, 157 (N.D.1964). The court must decide whether the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, reasonable men could reach but one conclusion as to the verdict. Otherwise stated, the court must decide whether the evidence, viewed most favorably to the party against whom the motion is made, and giving the party the benefit of all reasonable inferences from the evidence, compels a result with which no reasonable person might differ. Nokota Feeds, Inc. v. State Bank of Lakota, 210 N.W.2d 182, 187 (N.D.1973). And see Kunze v. Stang, 191 N.W.2d 526, 537 (N.D.1971).

Landis claims that the evidence shows that he acted justifiably in self-defense and therefore the judge should have granted his motion. We disagree. When the evidence is viewed in the light most favorable to Dahlen, Landis is not entitled to a judgment as a matter of law. Reasonable people could differ as to whether or not Landis acted in self-defense. The trial court did not err in refusing to grant Landis's motion.

II.

As one ground for his motion for a new trial, Landis asserted that both the compensatory and punitive damage awards were excessive. Rule 59(b)(5), NDRCivP. Considering the evidence of the viciousness of the beating, Dahlen's physical injuries and his fairly lengthy hospital stay, and Dahlen's pain, humiliation and anxiety, the trial court held that the $20,000 compensatory award was supported by the evidence.

The question of whether or not a new trial should be granted rests "almost entirely in the discretion of the trial court," Kresel v. Giese, 231 N.W.2d 780, 790 (N.D.1975). We reverse an order denying a new trial only if a "manifest abuse of discretion" is shown. Stee v. "L" Monte Industries, Inc., 247 N.W.2d 641, 645 (N.D.1976). Where the ground of the motion is passion or prejudice, this court has said that the trial court is to consider and weigh the evidence. Cook v. Stenslie, 251 N.W.2d 393, 395 (N.D.1977). We explained, however, that a verdict is excessive only if: the amount is so unreasonable and extreme as to indicate passion or prejudice on the part of the jury; the award is so excessive as to be without support in the evidence; or the jury verdict is so excessive as to appear clearly arbitrary, unjust, or such as to shock the judicial conscience. Cook v. Stenslie, supra, 251 N.W.2d at 396 (reviewing prior North Dakota cases) (citations omitted).

The weighing of the evidence by the trial court does not permit the court to substitute its judgment for that of the jurors. The determination of the amount of damages is peculiarly within the province of the jury. Such determination rests largely in its discretion. Johnson v. Monsanto Co., 303 N.W.2d 86, 92 (N.D.1981).

In Unruh v. Murray, 84 N.W.2d 730, 733 (N.D.1957), we held that the measure of damages for assault and battery is the detriment one party has suffered because of the unlawful act of another. Detriment means a loss or harm suffered in person or property. Unruh, supra. A review of the evidence, within the above guidelines, discloses that Dahlen suffered a brutal beating which left him with several broken bones (nose, finger, two broken ribs) and bruises. The picture he painted was of an unexpected assault in which Landis kicked him repeatedly, ignoring his pleas for mercy. A forced apology to Tom Durkin and a display of his injuries were also part of Dahlen's ordeal. Dahlen's nine-day hospital stay was marked by considerable discomfort; he was prescribed medications for sleep and for anxiety. His doctor testified that Dahlen visited his office several times during the month that followed his hospital stay, fretting about the possible effects of his injuries. Dahlen's dosage of tranxene, a drug designed to reduce anxiety, was doubled in December 1977. Dahlen testified that, "I can do probably half the work I used to do." Dahlen testified that he was humiliated and embarrassed because of the assault.

Is the award of $20,000 as compensation for the harm Dahlen suffered so unreasonable and extreme as to indicate passion or prejudice on the part of the jury? Is the award so excessive as to be without adequate support in the evidence? The trial court did not think that it was, nor do we. The jury may properly consider wounded feelings, mental suffering, humiliation, degradation, and disgrace in fixing compensatory damages. In an assault and battery action the victim ordinarily is entitled to recover for all bodily injuries and the attendant pain and suffering. 6A C.J.S. Assault and Battery § 56. As we have said many times, the determination of damages for pain and suffering and comparable losses is not susceptible of an arithmetical calculation. Its ascertainment must, to a large degree, depend upon the common knowledge, good sense and practical judgment of the jury. Lake v. Neubauer, 87 N.W.2d 888, 891 (N.D.1958). The...