Gartner v. Mohan
| Citation | 39 S.D. 202,163 N.W. 674 |
| Decision Date | 05 July 1917 |
| Docket Number | No. 4122.,4122. |
| Parties | GARTNER v. MOHAN. |
| Court | Supreme Court of South Dakota |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Charles Mix County; R. B. Tripp, Judge.
Action by Harry Gartner against John J. Mohan. From the judgment for nominal damages and from the order denying plaintiff a new trial, he appeals. Reversed.P. A. Hosford, of Platte, and G. M. Caster, of Lake Andes, for appellant.
Ambrose B. Beck and John E. Tipton, both of Geddes, for respondent.
Action for damages claimed to have been suffered by plaintiff as a result of an assault by defendant. Verdict for plaintiff in the sum of $1. From the judgment thereon and from an order denying a new trial, plaintiff appealed.
The only question that requires our consideration is whether this judgment can stand in the light of the instructions of the court. The evidence showed that upon the day of the alleged assault there were two affrays in which plaintiff was a party. Respondent contends, and we think correctly, that the sole issue of fact tried to the jury was:
“Whether this appellant received the injury *** at the time of his first encounter with the respondent, or whether he received such injury shortly afterward at the time of the fight when he was resisting arrest.”
Appellant claimed, and there was evidence tending to show, that he received the injury at the time of the first encounter. Respondent claimed, and there was evidence tending to show, that such injury was received at the later encounter, and that such injury was not inflicted by respondent. That plaintiff was injured on one or the other of those occasions, and that his injury was of a quite serious nature, were undisputed. The court, among other things, instructed the jury as follows:
“Now, gentlemen, in view of these contentions of these parties, it is the duty of the court to charge, that, if you find from the evidence that the defendant did not kick the plaintiff, that is, inflict the injury of which complaint is made, your verdict, of course, should be in favor of Mr. Mohan, or, in other words, if you find the facts are as contended by him, he would be entitled to a verdict at your hands.
But, on the other hand, if you find from the evidence that Mr. Mohan was the one who inflicted this injury upon plaintiff, he would be entitled to recover, or, in other words, if you find the facts are as contended by him, he would be entitled to a verdict.”
And upon the question of amount of damages the court instructed as follows:
“So, under this general rule, if you find in favor of the plaintiff, he would be entitled to recover for the reasonable value of the time, if any, lost because of the injury; the reasonable value of medical services disbursed or incurred by reason thereof, and also for the physical injury and consequent pain and suffering, together with impaired physical and mental powers, if any.”
These instructions were in no manner excepted to by either party,...
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