Fink v. Thomas
| Decision Date | 14 December 1909 |
| Parties | FINK v. THOMAS. |
| Court | West Virginia Supreme Court |
Submitted June 3, 1909.
Syllabus by the Court.
An order in vacation, showing the execution of a bill of exceptions not signed by the judge, is certified as a part of the record. A paper Is presented, certified by the clerk, showing the same order, having indorsed upon it "Enter. I. C. Herndon," who is judge. The bill is good as part of the record.
An instruction binding the jury to give exemplary damages is erroneous.
Exemplary or punitive damages in an action for tort are not matter of right, and it is with a jury to say whether or not they shall be given.
In an action for assault and battery, punitive damages cannot be found unless the act is unjustifiable, willful, wanton, and reckless, manifesting malice.
Error to Circuit Court, Mercer County.
Action by L. J. Fink against J. Walton Thomas. Judgment for plaintiff, and defendant brings error. Reversed.
John M McGrath, Harold A. Ritz, and Russell S. Ritz, for plaintiff in error.
Hugh G Woods, for defendant in error.
In this case appears a bill of exceptions signed by the judge in vacation. There appears, as part of the record certified, an order purporting to be an order stating that the bill had been presented to the judge in vacation, and was executed but this order was not signed by the judge. This, without more, would not be a good certificate by the judge authenticating the bill; it would not show it to be the final authentic bill. State v. Blair, 63 W.Va. 636, 60 S.E. 795; Wells v. Smith, 49 W.Va. 78, 38 S.E. 547. But on certiorari there has been brought to us a copy of a paper showing an exact copy of the said unsigned order, with the indorsement on it giving the title of the case, and stating it to be a vacation order in the case, with the words indorsed on the back of the paper "Enter. I. C. Herndon." This is the judge's order, under the practice generally used of indorsing on papers an order by the judge for entry as part of the record. The better practice would be to sign the certificate. This bill of exceptions is contested as not good, but we think it is. We must not be in this matter too technical, and thus deprive suitors of the benefit of resort to this court.
This is an action of trespass on the case by L. J. Fink against Walton Thomas for assault and battery. The case was tried by a jury, and resulted in a verdict for the plaintiff for $750, for which the court rendered judgment. A short outline of the evidence is rendered necessary for the consideration of instructions and other points of alleged error. The evidence tends to show, for our present purposes, without our expressing any opinion upon its force, that Thomas conducted a liquor saloon in Mercer county, and that after the plaintiff, a miner, had been paid on pay day, he became intoxicated, and went into the saloon of Thomas and called for liquor, and Thomas' barkeeper refused him liquor, and Fink became very angry. A. K. Underwood, a deputy sheriff, was in the saloon, and he urged Fink to lie down and get sober, but Fink refused, and swore and demanded liquor, and kicked the barkeeper for failing to let him have it, and drew a knife, a large knife, a large dirk knife. Then Underwood put him under arrest and took the knife from him. Thomas was across the room and heard the noise, and came up and asked what was the trouble, when Underwood replied that Fink had a great long knife, and that he (Underwood) wanted Thomas to help him (Underwood). The plaintiff grabbed the defendant and threw him down, and then he was taken by Underwood to the jail; Thomas remaining at the saloon. At the jail he snatched hats from several bystanders, and, those present declining to aid him in regaining the hats, Underwood sent to Thomas to assist him. When Thomas came, Underwood gave Thomas his revolver, and told him to stand in the door to prevent the escape of the plaintiff, while Underwood went into the cell to get the hats, and when Underwood started in after the hats Fink, with another knife in his hand, approached the door of the cell as if to attack Thomas, when Thomas struck him on the head with the revolver and knocked him down and prevented his cutting any one, and also prevented his escape. The knife was then taken from Fink.
The first error assigned is that the court allowed a witness to answer the question, "Tell the jury what manner in which Underwood took Fink out of there"; the answer being, "Mr. Underwood drug him out." This is branded by counsel as inadmissible under the principle of res alios acta, a rule which prevents a party from being concluded or affected by evidence of the act, conduct, or the declarations of strangers. It is urged that Thomas should not be prejudiced by the acts of Underwood in taking Fink to jail, that his dragging Fink out was Underwood's act, and that to introduce it would stir up prejudice against Thomas, and incite sympathy for Fink, and lean the jury to Fink and magnify damages; that it could throw no light on the controversy between Thomas and Fink. We are cited to Deitz v. Insurance Co., 38 W.Va. 527, 11 S.E. 50, 25 Am. St. Rep. 908, for the proposition that: "Questions which have no bearing upon the issue, or a very remote one, and which are calculated to prejudice the minds of the jury ought to be excluded." We are cited to 1 Greenleaf on Evidence, § 52, to the effect that this rule excludes evidence of collateral facts not throwing any light upon the principal matter, and tending to draw away the minds of the jury from the point in issue, and to excite prejudice and mislead the jury. What had Thomas to do with the manner of Underwood's taking Fink to jail? No conspiracy is proven. Nor can this evidence be justified under the principle of res gestæ, because things introduced under that principle must be pertinent, relevant, and cast light on the issue. This evidence was inadmissible.
Another error assigned is this: When at the jail, as the evidence tends to show, Fink was violent and set fire to the bedclothes, and was breaking a bed bunk, and was handcuffed to the bars. A man named Hancock was there. A witness, Ferrell, was asked, "You say that they handcuffed him to the bars?" The answer was: "Yes, sir; Mr. Underwood went up there, and says, 'I am going to handcuff you to the bars,' and Mr. Hancock reached through the bars and grabbed him by the hair, and held him until Mr. Underwood handcuffed him." The court refused to strike out this evidence. That was a matter between Hancock, Fink, and Underwood. What had Thomas to do with Hancock's act? Or the act of Underwood as a deputy sheriff in this matter? It introduced Hancock's act into the case, and tended to produce prejudice against the cause of Thomas, and was inadmissible. Cases should be tried by the evidence shedding light on them, and relating to the parties litigant.
Another assignment of error is that the court allowed a witness to give evidence that Underwood had his pistol in his hand, talking about shooting Fink, and was pointing this way between the bars, and somebody told him to go according to law, as he was an officer. We do not see what that had to do with the case as against Thomas; but that part of this assignment of error touching the evidence of this witness that the pistol was a large one is admissible. Fink had a right to show the size of the pistol with which he was struck.
Another claim of error is that the defendant on the stand stated that he assisted in taking a knife away from Fink in the jail cell, and that the knife had a leather case, and then he was asked whether or not the knife was in that leather case, but the court would not allow it. If the proposition was to prove that the knife was out of the leather case, Fink having stated it was in the case, not out of it, we think it would have been admissible; but what answer was expected is not shown, and there is no error in this.
Another error assigned is this: Fink stated that he was not drunk on the occasion. He was asked whether he had not, on the Monday morning after the trouble, in the presence of Underwood, had a conversation with Sop Bryant, in which he told him that he had been drunk, and that they had beaten him up a little, and that they ought to have broken his damned neck. He denied this statement. Bryant stated that Fink had made that statement to him. The court admitted this only to give Thomas the benefit of the answer in the record, but instructed the jury to disregard the evidence. We do not see why the defendant could not prove that Fink was drunk as tending to affect the accuracy of his recollection as a witness, and also as bearing on his conduct at the time of the trouble, and also on...
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