Ennis v. Brawley

• Decision Date: 17 December 1946
• Docket Number: No. 9804,9804
• Citation: 129 W.Va. 621
• Parties: Bayard F. Ennis v. D. Earl Brawley
• Court: West Virginia Supreme Court

129 W.Va. 621

Bayard F. Ennis

v.D. Earl Brawley

No. 9804

Supreme Court of Appeals of West Virginia.

Submitted October 1, 1946.

Decided December 17, 1946.

Damages

"a finding of compensatory damages by a jury is an indispensable predicate to a finding of exemplary or punitive damages, and damages awarded by way of punishment must bear a reasonable proportion to compensatory damages so found." Toler v. Cassinelli, 129 w. Va. 591. Syllabus Point 3.

Error to Circuit Court, Kanawha County.

Action of trespass on the case of Bayard F. Ennis against D. Earl Brawley to recover compensatory and exemplary damages for an unlawful assault. To review a judgment in favor of plaintiff, defendant brings error.

Judgment reversed; verdict set aside; new trial awarded.

B. J. Pettigrew and Beverley Broun, for plaintiff in error.

John V. Ray, Robert E. Stealey, Robert S. Spilman, Payne, Minor & Ray and Spilman, Thomas & Battle, for defendant in error.

Kenna, President:

In this action of trespass on the case Bayard F. Ennis sought to recover from D. Earl Brawley the sum of $10,-000.00 by way of compensatory and exemplary damages by reason of an unlawful assault suffered by the plaintiff at the hands of the defendant in the Kanawha County Court House on June 20, 1945. To a judgment of $3,001.-00 the defendant below was granted this writ of error.

Under Code, 56-5-2, the sum of $25.00 was paid into court accompanied by an appropriate plea, to which the demurrer of the plaintiff was overruled, the plaintiff then declining to accept the payment which was not withdrawn but remained in the hands of the court. This plainly constituted an admission of liability for compensatory damages and left the quantum of compensatory and the question of whether punitive damages could be awarded and if so its quantum, the only questions going to the jury upon submission.

The assignments of error briefed and submitted are:

(a) The sum included in the verdict as punitive damages is grossly excessive;

(b) The court erred in refusing to permit the defendant to show the falsity of the newspaper article written by the plaintiff that provoked the attack giving rise to the cause of action;

(c) The trial court erred in admitting hearsay testimony over the objection of the defendant;

(d) The court erred in giving plaintiff's instruction No. 2 as modified;

(e) The court erred in giving plaintiff's instruction No.6;

(f) The court erred in refusing to give defendant's instructions Nos. 2 as offered, 4, 7 and 8, and in giving plaintiff's instruction No. 4; and

(g) The verdict is contrary to the law and the evidence.

In order to understand the background upon which the assignments of error rest, the last will be considered first, remembering that in the light of the verdict questions of doubt created by a conflict of testimony are to be resolved in favor of the defendant in error.

D. Earl Brawley was and is Sheriff of Kanawha County. Bayard F. Ennis was a reporter of The Charleston Gazette, to whom was assigned the duty of "covering" the court house daily. On the 14th day of June, 1945, the first edition of The Gazette, bearing date the 15th and released at about eight o'clock the evening of the 14th, carried an article written by Ennis stating, in substance, that "it was learned yesterday" that Edgar C. Bourne, a Lieutenant Detective of the Charleston Police Force then under suspension, due to the fact that he was then under indictment for extortion, "may become a deputy sheriff", and that the County Court then had the approval of his appointment under consideration. At the time the article was published Brawley was not in Charleston and he testified that he heard nothing concerning it until his return in the early afternoon of June 20. The account's appearance brought prompt denials from Assistant Sheriff Luther Carson, President of the Kanawha County Court Mont L. Cavender, as well as from Bourne. Sheriff Brawley was in Jeannette, Pennsylvania, visiting relatives of Mrs. Brawley, having left Charleston on the 11th of June. The only person in his office who was informed as to where he could be located was Office Deputy Burkhart. Brawley says that the first information he had concerning the article was upon his return to Charleston when he pulled up in front of the jail in the early afternoon of June 20. At that time Luther Carson and two or three road deputies hurried to his car and asked him to explain Bourne's appointment. According to his testimony Brawley, angered, then rushed into the jail, where the jailer, Estil Melton, handed him the paper containing the article, which he then read. He says that the article made him more angry and that he started from the jail to his office in the court house in order to telephone Ennis at the office of The Charleston Gazette and demand an explanation. As he was walking through the corridor leading to his office he looked through the glass door at the entrance of the County Court offices and saw Ennis seated in the private office of President Cavender. He immediately went into Commissioner Cavender's office and demanded of Ennis if he had written the "damn lie" concerning the appoint- ment of Bourne and being told that Ennis had written the article in question he asked Ennis why he hadn't had the statement of the article verified in his office before publication and was simply told that it came from a reliable source. Brawley says that he was quite angry when he left the county jail and that his encounter with Ennis made him still angrier. Ennis was seated and Brawley says that he took him by the shoulder and shook him. He denies that he choked Ennis or that he struck him with his fist. He does say that he slapped him with his open hand two or three times.

Ennis' account of the attack is quite different. He testifies that he was in Cavender's office at around onethirty in the afternoon attending to his usual duties when Sheriff Brawley came in and demanded if he were "the guy" that had written the article in question. Being told that he was, Brawley stated that he ought to kill him and that he intended to do so at that particular moment. This was followed by Brawley's reaching over and gripping Ennis' throat with his two hands and choking him severely in addition to shaking him so that his glasses fell to the floor, Ennis being very near sighted.

While that was occuring Commissioner Cavender arose and told Brawley: "You can't do that." Ennis says that Brawley's attack was momentarily interrupted so that he, Ennis, leaned forward with his head in his hands, Brawley having released his throat. Thereupon, according to Ennis' account, Brawley returned to the attack and pummeled him with his fists on the shoulder and back, leaving bruises on his body. Cavender again told Brawley that he could not do that and he and a truck driver named Ralph C. Frasher, who was also in Cavender's office, took Sheriff Brawley by the arms and led him from Cavender's office.

There is considerable conflict in the testimony that we think need not be specifically mentioned, such as admissions against interest or contradictions concerning Sheriff Brawley's testimony that he did not choke nor strike the plaintiff with his fist, whether Ennis was bleeding from the lower lip when he left Cavender's office and went to that of Prosecuting Attorney Frank Taylor, what the purpose of his call at the latter's office was, et cetera. We believe that in the light of our decision that the assigned points of error can be reduced to three principal questions:

1. Under the law of West Virginia is it necessary that a verdict for punitive damages bear a reasonable proportion in amount to the compensatory damages awarded by the same verdict and if so, does the amount of $1.00 compensatory damages and $3,000.00 punitive damages, shown by the answers of special interrogatories propounded to the jury, bear such a reasonable proportion?

2. Did the court err in refusing to permit the defendant below to introduce evidence that the newspaper article written by Ennis was false in its statement of fact; and

3. Did the court err in permitting testimony to be introduced concerning a statement alleged to have been made by Luther Carson, Assistant Sheriff, to the effect that he, Carson, had talked to Sheriff Brawley on a long distance call to Jeanette, Pennsylvania, the night of June 14, the testimony being for the purpose of showing that Brawley had had a "cooling off period" of five or six days before the encounter with Ennis.

We are of opinion that settled law of this State does require something more than nominal damages in order to support an award of exemplary damages for the reason that if the plaintiff suffered no injuries of any kind in the eyes of the jury it is the function of the criminal law, not the civil law, in the proper circumstances to inflict deserved punishment upon the defendant. A finding of nominal damages means, in effect, that the defendant, though guilty of the wanton disregard of the rights of others, has done no injury. However, a person who comes to court and obtains redress of his personal grievances by way of substantial recovery of actual damages mental, physical, or otherwise will be permitted to mulct the defendant if he establishes that his injuries were inflicted in wanton disregard of his rights, the law thus recognizing a culpability approaching the criminal that may exist in the commission of a tort and the propriety of punishing it in a civil action when it results in substantial injury to another.

The plaintiff below, defendant in error, cites as sustaining its position a number of cases of assault and battery from this and other jurisdictions where both compensatory and exemplary damages have been sought and alleged, in which verdicts equal to, or greater than, the verdict in the case at bar have been upheld on writ of error, among them the West Virginia cases of Hunt v. Di Bacco, 69 W. Va. 449, 71 S. E. 584, the verdict being for the...