Frey v. Kouf

• Citation: 484 N.W.2d 864
• Decision Date: 11 February 1992
• Docket Number: No. 17547,17547
• Parties: Rick FREY, Plaintiff and Appellant, v. Kerry KOUF, Defendant and Appellee. . Considered on Briefs
• Court: Supreme Court of South Dakota

Page 864

484 N.W.2d 864

Rick FREY, Plaintiff and Appellant, v. Kerry KOUF, Defendant and Appellee.

No. 17547.

Supreme Court of South Dakota.

Considered on Briefs Feb. 11, 1992.

Decided April 22, 1992.

Mitchell D. Johnson, Rapid City, for plaintiff and appellant.

Wally Eklund of Johnson, Eklund and Davis, Gregory, and Gary G. Colbath of Banks, Johnson & Colbath, Rapid City, for defendant and appellee.

WUEST, Justice.

Plaintiff Frey (Frey) brought a cause of action against Defendant Kouf (Kouf) on the alternate theories of "intentional assault" (battery) and "negligent assault" (negligence). The matter was tried before a jury. The jury found in favor of Kouf, and the trial court entered a judgment dismissing the plaintiff's complaint. Frey made a timely motion for new trial and, in the alternative, for a judgment notwithstanding the verdict. The trial court denied those motions. Frey appeals to this court raising the following issues:

I. Whether the trial court erred in instructing the jury on the definition of "intent" within the context of civil proceedings.

II. Whether the trial court erred in instructing the jury on contributory and comparative negligence.

Issue I is dispositive of this appeal. Because of an error of law, we reverse the judgment of the trial court, which includes the verdict on negligence. We will decide issue II only to provide guidance to the trial court on remand. We do not reach the other issues raised by Frey.

Frey and Kouf were friends and business associates. They bought and sold cars together and jointly owned property, including boats and an airplane. On March 12, 1990, Frey and Kouf met at a bar in Rapid City, South Dakota. Both men arrived at the bar sometime between 4:00 P.M. and 5:00 P.M. Both men consumed alcoholic beverages. The bartender testified both men drank steadily throughout the evening. A cocktail waitress testified they were intoxicated. Both men discussed a mutual business arrangement. The conversation became rather heated at times. Both men used profanity. At one point, the owner of the bar admonished both men to quiet down. The situation then seemed to resolve itself. Frey and Kouf had been sitting at the same table next to each other during their discussion. Subsequently, Frey moved to a seat further away from Kouf but still at the same table. Frey testified his move was caused by a feeling of tension which then existed between Frey and Kouf as a result of their animated discussion. The evidence concerning what happened next was highly conflicting.

Dawn Anderson (Anderson), a waitress at the bar, testified as follows. Shortly after she completed her shift, she was seated in the bar having an "after-work drink." While she was having her drink, she heard the discussion at the table where Frey and Kouf were seated get louder. She then observed Kouf stand up very quickly, his chair sliding into the wall, and proceed around the table with a glass in his hand. Kouf then hit Frey in the face with the glass. Anderson denied that Kouf threw the glass. She also denied having seen Kouf throw the glass on the table causing it to ricochet into Frey's face. After Kouf hit Frey in the face with the glass, Anderson saw Frey fall out of the chair. At this point, she testified Kouf was "right on top of him and was kicking the back of him." Anderson saw Kouf kick Frey in the back two or three times. Anderson testified the incident happened very quickly, and that, prior to the occurrence, there was no indication it was about to happen. At no time, did Anderson hear Frey threaten Kouf nor did she see Frey fight back.

Two other witnesses testified that, although they did not see the actual injury take place, Frey did not physically provoke Kouf. They also stated the incident occurred without warning. Kouf himself testified Frey did not threaten him with physical harm.

Kouf testified the time of the incident was "one of the angriest moments" of his life, that throwing the glass was his way of "venting his frustrations," and that he saw his "life unraveling" moments before the incident occurred. Kouf testified he was losing his business, his marriage was on the rocks, he was probably going bankrupt, and he vented these frustrations by picking up the bar glass and throwing it "in [Frey's] direction." Kouf denied "smashing" the glass into Frey's face. Kouf's attorney asked Kouf, "when the glass left your hand, did you intend to strike him in the face?" Kouf answered, "I didn't intend to hurt Rick Frey, that was not my intention." (Emphasis added). Later, Kouf stated he did not intend to hit Frey with the glass. He also testified "I picked the glass up and I threw it as quick as I could." Kouf then testified that, when he threw the glass, he was looking down, and "wanted it to catch his attention that I was angry." Kouf admitted he got carried away and was not justified in hurting Frey.

All the witnesses agreed Frey was bleeding profusely from his nose and mouth after the incident. The police and an ambulance were summoned to the bar. Kouf left before the police arrived. Frey testified he did not remember much of the incident. He remembered seeing Kouf stand up, and then caught a glimpse of something coming towards him out of the corner of his eye. After that, his vision was blurred. Later, he became aware of ambulance personnel who were providing him with treatment. Frey was then taken to a local hospital.

At Rapid City Regional Hospital, Dr. Bruce Allen treated Frey. Dr. Allen testified through his deposition Frey suffered a severed artery and lost approximately two pints of blood. Dr. Allen used sixty sutures to close the wounds in Frey's face.

Dr. Joseph Lytle provided Frey's follow-up care. He testified two of Frey's teeth were broken off. One of the teeth was broken off at the gum level, and the other was shattered and broken off at the bone level. It took Dr. Lytle four months to fully repair the damage to Frey's teeth. Dr. Lytle testified it takes substantial force to break teeth off. The type of force necessary would be comparable to what is seen in an automobile accident or when somebody dives into, and hits the bottom of, a swimming pool.

I. LEGAL DEFINITION OF "INTENT."

One of the causes of action Frey brought was for intentional assault or battery. After the defense rested, counsel and the trial court settled jury instructions. Neither plaintiff nor defendant offered a jury instruction defining the element of intent. After a noon recess, the court informed counsel it had put in a jury instruction defining the word "intentionally." The instruction given is found in the South Dakota Criminal Pattern Jury Instructions. See S.D. Criminal Pattern Jury Instruction No. 1-11-1. Frey's attorney objected to the instruction, pointing out that it was inconsistent with our ruling in VerBouwens v. Hamm Wood Products. Frey's counsel informed the trial court of the definition set out in the VerBouwens decision (discussed infra ). The court then asked Frey's counsel, "where's your proposal to replace the one that defines intent that I utilized? You don't have one?" Frey's counsel admitted he did not have a prepared instruction to define the term intentional. The trial court then stated, "In the absence of either side presenting me with a proposed instruction pursuant to the statutory procedure for settling instructions, I'm going to overrule your objection to the one ... that the court has used and you may be right in your definition, but we're about ready to commence argument and you don't have a proposal or a copy with your sources for me to use, so you are late."

We must initially determine whether Frey adequately preserved this issue for appeal. Kouf relies on the fact Frey failed to offer a proposed written instruction to the trial court defining "intent," and argues Frey, having failed to follow the prerequisites of SDCL 15-6-51(a) ¹ has not preserved this issue for appeal. However, this assertion misapprehends Frey's argument. Frey is not objecting because the trial court rejected a proposed jury instruction. Cf. Ballard v. Happy Jack's Supper Club, 425 N.W.2d 385, 387 (S.D.1988) (handwritten instruction could have formed basis for amendment of court's jury instruction). Rather, Frey is objecting to the instruction adopted by the trial court. In Schmidt v. Wildcat Cave, Inc., 261 N.W.2d 114 (S.D.1977) we held "failure of a court to correctly or fully instruct the jury is not reviewable unless an objection or exception to the instruction identifying the defect therein with sufficient particularity was taken or a written instruction correctly stating the law was requested." Id. at 116 (citing SDCL 15-6-51) (emphasis added). Further, in Glanzer v. St. Joseph Indian School, 438 N.W.2d 204, 211 (S.D.1989), we held "an objection to an instruction need not be accompanied by a proposed instruction ... to place the objected-to instruction before this Court on appeal." See also Aschoff v. Mobile Oil Corp., 261 N.W.2d 120, 125 (S.D.1977). Frey's counsel specifically objected to the intent instruction and informed the trial court of what he believed was the correct definition of intent.

During settlement, counsel must specify "the particular ground or grounds upon which the giving or rejecting of any instruction is objected to." SDCL 15-6-51(b) (1984). We have held that no particular formality is required when objecting to instructions; the objection is sufficient if the judge was informed of the possible error so that he might have the opportunity to make corrections. Hogg v. First Nat. Bank of Aberdeen, 386 N.W.2d 921, 925 (S.D.1986); Schmidt, 261 N.W.2d at 116. We conclude the trial court was adequately informed of the possible error, and Frey's counsel adequately preserved the matter for review pursuant to SDCL 15-6-51(b). ²

We now turn to the merits of Frey's argument. Initially, the court instructed that jury battery is defined as "any willful and unlawful use of...