Denton v. Arnstein

• Decision Date: 19 November 1952
• Citation: Denton v. Arnstein, 197 Or. 28, 250 P.2d 407 (Or. 1952)
• Parties: DENTON v. ARNSTEIN.
• Court: Oregon Supreme Court

Page 407

250 P.2d 407

197 Or. 28

DENTON v. ARNSTEIN.

Supreme Court of Oregon.

Argued and Submitted Sept. 25, 1952.

Decided Nov. 19, 1952.

Cleveland C. Cory, of Portland, argued the cause (Hart, Spencer, McCulloch, Rockwood & Davies, and John C. Beatty, Jr., of Portland, on the brief), for appellant.

W. J. Prendergast, Jr., of Portland, argued the cause (David Weinstein, of Portland, on the brief), for respondent.

Before BRAND, C. J., and ROSSMAN, LUSK, WARNER and TOOZE, JJ.

TOOZE, Justice.

This is an action brought by Beverly V. Denton, as plaintiff, against Milton M. Arnstein, as defendant, to recover damages for personal injuries claimed to have been caused by an assault and battery committed by defendant against plaintiff. The case was tried to a jury. A verdict was returned in favor of plaintiff for the sum of $4,600 as compensatory damages, and for the further sum of $5,400 as punitive damages. Judgment was accordingly entered, and defendant appeals therefrom.

Northeast Union avenue is an established public street in the city of Portland, Multnomah county, Oregon, and it has been duly designated by the State Highway Commission of the state of Oregon as a state highway through the city of Portland, being a part of highway No. 99E. It is a four-lane highway, running in a general northerly and southerly direction. Traffic upon N. E. Union avenue is controlled by traffic signals installed at a large number of street intersections along its route. Northeast Glisan street also is a public street of the city of Portland, running in a general easterly and westerly direction and intersecting N. E. Union avenue. Traffic at such intersection is controlled by traffic signals. Immediately south from this intersection and on N. E. Union avenue, there is a viaduct crossing what is known as 'Sullivan's Gulch'.

On May 9, 1949, at about the hour of 7 o'clock p. m., plaintiff was operating a 1946 Hudson automobile in a southerly direction along N. E. Union avenue. She was driving in the easterly, or inside, lane for traffic proceeding south. It was daylight, and the pavement was dry. According to plaintiff's testimony, when she reached the intersection of N. E. Union avenue and N. E. Glisan street, the traffic light turned to red, and, obeying this signal, she brought her automobile to a stop. She states that, while she was so stopped and waiting for the signal to change so that she might proceed, the defendant, driving his 1948 Cadillac automobile along the inside lane of traffic proceeding south, approached her automobile from the rear and stopped. She claims that defendant immediately commenced sounding the horn on his car and continued to sound the horn until after the traffic light changed. When the traffic light changed, plaintiff states, she immediately put her car in motion and was followed by defendant's car, with the horn on that car still sounding. When she had proceeded but a short distance south, defendant bumped the rear of her car with the front of his automobile, but with no substantial degree of force. She then states that, after she had proceeded farther for a short distance, defendant again sounded the horn on his automobile and then drove his car into the rear end of the Hudson with great force. The grille on the front of defendant's car and one headlight were smashed, and a fender dented. In her version of the collision, plaintiff was corroborated by two disinterested witnesses and by her husband. There was testimony to the effect that defendant in driving his automobile weaved in and out of traffic, traveling from one lane of traffic to the other. There also was testimony to the effect that defendant had been using intoxicating liquor and was arrogant and belligerent immediately following the collision.

J. C. Stewart, a variety merchant of the city of Portland, who was traveling southerly in the outside lane of traffic for southbound vehicles and approximately 50 feet from the defendant's car, and who was not acquainted with any of the parties, testified as a witness for the plaintiff. In the course of his direct examination, he testified:

'Q. Where was the first crash that you noticed? A. Approximately not more than 50 feet in front of me.

'Q. Where with reference to the intersection was the crash? A. I don't remember.

'Q. Tell the jury what you saw there and what you did. A. Well, the first crash, I noticed--the two cars in front of me were parallel and not driving very fast, about 20 miles an hour, and this big car came down and deliberately crashed into the car and then stopped and took another run at the car and broke his headlight, and then he stopped, and three men, myself and two other men got out and demanded that the driver of the big car get out, and we went over and signed up as witnesses and told the lady if she needed any witnesses in court we would appear there.'

No objection was made at the time to the use of the word 'deliberately' in this narration by the witness of what he observed.

Another disinterested witness, Oswald H. Reed, testified that immediately prior to the collision, he was traveling south on N. E. Union avenue along the outside lane for traffic and following behind defendant's automobile. He observed the acts of defendant. He told about the defendant's car having been driven twice into the back of the automobile which plaintiff was driving. On direct examination, as a witness for plaintiff, he testified:

'Q. I want you to tell the jury, Mr. Reed, in your own words just what you saw after this Cadillac which had cut over in front of you cut back into the other lane, tell the jury now what happened. A. Well, there was two cars ahead of the Cadillac, and the Hudson was just about in between, or just about abreast of the second car, and we was all going approximately the same speed, and the Cadillac pulled out of the outside lane right behind the Hudson and bumped her, blew his horn and hit her again.

'Q. In other words now in the lane of traffic next to the curb on the viaduct in front of your car was another car, and in front of the Cadillac was the other automobile? A. Right.

'Q. Over to the left of you in the inside lane the Hudson was even with the first of the two cars ahead of you? A. Approximately.

'Q. And they were all traveling approximately the same speed? A. Yes.

'Q. The Cadillac cut out from the outside lane and came into the inside lane? A. Yes, the Cadillac cut from the outside lane into the inside lane.

'Q. And came up to the Hudson? A. Yes, and came up to the Hudson.

'Q. And pushed it ahead? A. Yes.

'Q. Honked the horn? A. Yes.

* * *

* * *

'Q. You say the Cadillac sounded the horn and then struck the Hudson again, is that correct?. A. Yes, that's correct.

'Q. Will you tell the jury whether or not that was a light blow or what kind of a blow it was. A. It was a blow you could hear a good half block away.

'Q. What happened to the Hudson? A. After the second impact the Hudson stopped and the Cadillac stopped and the two cars in the lane in front of me pulled over to the curb and stopped and I pulled over to the curb ahead of them and stopped.

'Q. And did you go back to the scene of the collision? A. I went back, and there was one other fellow on the sidewalk and another one came up and he was getting the names of the witnesses and I gave him my name and address and then went on about my business.'

Plaintiff was approximately in the eighth month of pregnancy at the time of the collision. She expected her child to be born about May 26. When the collision occurred, plaintiff's abdomen came in forcible contact with the steering wheel of the Hudson, and she suffered a blow to her chin. Plaintiff remained in bed more or less constantly for five weeks immediately following the collision. She suffered aches in all parts of her body, particularly in her abdomen, and was unable to sleep without sedatives. She experienced great fear, worry, and apprehension for her unborn child, and her mental worries and nervous condition were aggravated after May 26 and until June 13, when the baby was born. The child was in every way normal. She tetified that she has been highly nervous since that time, that she cannot sleep as well as she did formerly, and that she suffers from nightmares. No physician testified on her behalf as to her condition at the time of trial. Her own testimony disclosed that all evidences of the blows received to her chin and abdomen had long since disappeared. No objective symptoms were discernible. All the symptoms as testified to were entirely subjective.

Dr. Paul B. Hansen, who examined plaintiff a few days prior to the trial, testified on behalf of defendant that, from his examination of plaintiff, he was able to find no evidence whatever that she was suffering any nervous condition or shock that was due in any way to the collision. He based his opinion upon the history of plaintiff's case as related to him by her, and upon his own examination.

It is obvious that if plaintiff's version of how the collision occurred is true, defendant's conduct was not only wilful, intentional, and deliberate, but it also was arrogant, belligerent, and contemptible.

However, defendant did not admit the course of conduct attributed to him by plaintiff and her witnesses. He gave an entirely different version of how the collision occurred and placed the blame therefor squarely upon plaintiff's shoulders. In his version of the affair, defendant was corroborated by one of his employees who was riding in the back seat of defendant's car at the time. Defendant testified that the collision occurred under the following circumstances:

'Q. Now will you just tell the jury from the time you first stopped at the stop light just what took place. A. Well, the Hudson, after the light changed--she was looking off to the side and the light changed, she didn't move, so I blew my horn and she started off. Well, as she started off her car jerked, and all of a...