Faubion v. Tucker, 5692

• Decision Date: 11 May 1954
• Docket Number: No. 5692,5692
• Citation: 1954 NMSC 47,58 N.M. 303,270 P.2d 713
• Parties: FAUBION v. TUCKER.
• Court: New Mexico Supreme Court

Page 713

270 P.2d 713

58 N.M. 303

FAUBION v. TUCKER.

No. 5692.

Supreme Court of New Mexico.

May 11, 1954.

Hartley & Buzzard, Clovis, for appellant.

James A. Hall, Clovis, Fred M. Standley, Santa Fe, for appellee.

SEYMOUR, Justice.

Appeal is taken from judgment on verdict in favor of plaintiff for compensatory damages of $100 and exemplary (punitive) damages of $1,125 based upon an alleged unlawful assault and battery committed by defendant on the body of plaintiff. Parties will be referred to in this decision as plaintiff and defendant.

Prior to the following events, plaintiff was an employee of defendant in the capacity of a salesman on commission. A difference arose between the parties, old friends, as to whether certain moneys constituted a commission and as to when they were to be paid by defendant to plaintiff. At about 4:30 p. m., June 30, 1952, defendant called at the home of plaintiff, who was no longer employed by the defendant; at the time, plaintiff was sitting on his front porch. A conversation took place concerning the disputed item, culminating as follows: Plaintiff said one of two things: 'Well, I'm a son of a bitch, I want my money'; or, 'You son of a bitch, I want my money.' This variance arises understandably from the testimony of the two parties. At that point, defendant either hit plaintiff several times or pushed him against the wall and departed. This encounter lasted approximately ten minutes.

That same afternoon plaintiff filed a criminal complaint against defendant for assault in justice of peace court, and defendant was served with warrant. About 8:00 p. m. the same night, while plaintiff, his wife and a visiting lady were sitting in the living room of plaintiff's home, defendant came to the door, was admitted by plaintiff's wife, strode into the living room, seized plaintiff by the arm and tried to force him to telephone to the justice of peace for the purpose of dismissing the criminal complaint. While there is some conflict in the testimony, the general idea was that defendant would break plaintiff's arm unless the call was made. Similar violence continued for some time. Plaintiff was adamant concerning the telephone call, which resulted in defendant's determining to take plaintiff bodily to the justice of peace. This defendant proceeded to attempt by pulling plaintiff, and dragging him by the heels to defendant's car parked in front of the house; plaintiff in the meantime resisted his own departure by hanging on to doorjambs, newel posts and such other assorted anchors as he could find. Finally, having forced plaintiff into the rear seat of the car, defendant strategically lowered the trousers of plaintiff in an endeavor to immobilize him. Plaintiff managed to escape from the opposite door of the car where he was met again by defendant and knocked to the ground. At this point, all thought it wise to call the police who soon arrived and terminated the meeting. While there are variants in and additions to these facts, they are substantially the admitted facts of the case. Plaintiff's total active participation in the evening's engagement seems to have been a refusal to telephone, a distressing attack of asthma which was brought on by the excitement of the afternoon and which he was treating with a number of drinks, and a consistent physical attempt to remain within the walls of his home.

Three points are relied upon for reversal. Defendant states his first point as follows:

'That the Court erred in refusing to give to the jury Defendant's Requested Instruction No. 5 (tr. p. 15) as follows, to-wit: 'If you believe from a preponderance of the evidence that the plaintiff, G. H. Faubion, did in a gross, insolvent or angry manner, insult the defendant, J. Elmo Tucker, personally, against his honor, delicacy or reputation, then you are instructed that the plaintiff, G. H. Faubion, committed an assault and battery on the defendant, J. Elmo Tucker, unless you believe from a preponderance of the evidence that the words used by the plaintiff, G. H. Faubion, were the truth."

The requested instruction was based on Sec. 41-613, 1941 Comp., a criminal statute covering assault with words. Defendant offers no reason for or argument in support of his claim of error other than the fact of the existence of the statute above cited. For that reason, if no other, it is our conclusion that the alleged error is unavailable to plaintiff. We find support for this conclusion in Robinson v. Mittry Bros., 1939, 43 N.M. 357, 94 P.2d 99, 101. As there stated by Justice Brice: 'For the convenience of this court and opposing counsel, the rule requiring the presentation of points or propositions of law as a basis for argument, should not be ignored.'

Moreover as to this first point as presented by defendant, we fail to see any relevancy of the requested instruction to the issues in this case. Its only possible relevancy is in relation to defendant's point two.

For his second point, defendant states:

'That the Court erred in refusing to charge the jury as requested in Defendant's Requested Instruction No. 6 (tr. p. 16) as follows, to-wit: 'If you believe from a preponderance of the evidence that the plaintiff, G. H. Faubion, committed an...