Glover v. Berger

• Decision Date: 17 November 1953
• Docket Number: No. 2614,2614
• Citation: 72 Wyo. 221,263 P.2d 498
• Parties: GLOVER, v. BERGER.
• Court: Wyoming Supreme Court

Page 498

263 P.2d 498

72 Wyo. 221

GLOVER, v. BERGER.

No. 2614.

Supreme Court of Wyoming.

Nov. 17, 1953.

R. G. Diefenderfer, Sheridan, H. F. Fellows, Rapid City, S. D., Lem Overpeck, Belle Fourche, S. D., for appellant.

Anderson & Morgan, Gillette, Maurer & Garst, Douglas, for respondent.

RINER, Justice.

This is a direct appeal proceeding where this court is asked to review a record and judgment arriving here from Campbell County, wherein Lee R. Glover was plaintiff, respondent here, and John Berger was defendant, but now the appellant.

Plaintiff's petition was originally filed October 17, 1951, in Crook County, Wyoming, where the parties reside but was removed to Campbell County on change of venue on the motion of the defendant and supported by his affidavit that he could not secure a fair trial in said county of Crook because, as alleged, 'Plaintiff has undue influence over the citizens of that county.' The order for this change of venue was not objected or excepted to by either of the parties aforesaid. Plaintiff's petition is in substance as follows: That on September 13, 1951, at defendant's home located north of Moorcraft in said Crook County the defendant maliciously and unlawfully committed an assault, and battery upon plaintiff by then and there firing two shots at plaintiff from a loaded rifle while plaintiff's hands were raised above his head, one of which shots struck plaintiff in his right forearm, passing through the same, lacerating the muscle and nerve tissue and fracturing the ulna.

That on account of the injury thus inflicted plaintiff was obliged to hire a car to transport him from Oshoto, Wyoming (the name of the location near where he was hurt) to Sundance, Wyoming, and to there employ a physician to save his life; from Sundance he was obliged to hire additional transportation to a hospital at Hot Springs, South Dakota, in order to save his right forearm and hand, all to his damage in the sum of $200.

That due to this injury plaintiff was forced to undergo an operation in said last named hospital for the removal of bone splinters and mutilated nerve and muscle tissue during which time he suffered great mental distress and bodily pain to his damage in the sum of $25,000. That plaintiff is reliably informed, and so states, that it will be necessary for him to remain in said hospital for eight weeks; that for a year thereafter, he will be unable to pursue his usual and customary occupation; that during said year he will have to undergo another operation in order that said forearm be further repaired and during all of which time plaintiff will not have the free use of his right arm and hand but will be required to employ help to do the work he would ordinarily do himself to his damage in the sum of $5,000. That plaintiff upon reliable information states he will never have the free use of his right forearm and hand, but will be permanently crippled to his damage in the sum of $25,000. That in inflicting this injury upon plaintiff the defendant acted maliciously and was guilty of a wanton disregard of plaintiff's rights and feelings, for which plaintiff demands exemplary and punitive damages in the sum of $50,000.

It was prayed that he recover of the defendant $55,000 compensatory damages and $50,000 punitive damages.

The defendant for his answer to plaintiff's petition denied each allegation of that pleading. For a second defense he stated in substance that he admitted he shot plaintiff at the time and place alleged in plaintiff's petition and that without excuse or justification plaintiff and one Henry Boles, as aggressors, approached defendant at his home in a rude, insolent, angry, riotous and turbulent manner and by threatening language and conduct caused him to believe or to have reasonable grounds for believing that both he and Mae Baker, an employee of the defendant, were about to be assaulted, battered, injured or killed by the plaintiff and Henry Boles, and in defense of his person and that of Mae Baker, and in preventing and attempting to prevent the carrying out of any such assault, battery or killing, and with no more use of force or violence than was reasonably believed by him sufficient to so defend his person and prevent such offense, he shot plaintiff. For a third defense plaintiff, as defendant avers, aggravated and provoked the shooting by his (plaintiff's) threatening and offensive language, insults and conduct and by his challenge of defendant to combat.

Plaintiff's reply to defendant's pleading was a denial of 'each and every allegation of new matter in said answer contained.'

It is stated in appellant's brief in this court, and it is not denied, that the District Judge while presiding in Crook County at the time the change of venue was applied for and granted, set certain cases for trial at Gillette, Wyoming, the county seat of Campbell County, to be heard before a jury in said county. Among these cases were the criminal case of State of Wyoming v. John Berger, defendant, and the civil case of Glover v. Berger, in which this appeal is prosecuted. This, the Judge did, by letter sent to all counsel of record in said cases. These settings of cases for trial were made by the presiding Judge aforesaid in Sundance, the county seat of Crook County; the letter thus sent was of date October 3, 1952. This letter, above mentioned, also set for trial other cases which were designated to be heard following the disposition of the civil action in the Glover case. The criminal case aforesaid was designated to commence on Monday, October 27, 1952, at 9:30 a.m. while the Glover civil action case was set to be heard on Tuesday, October 28, 1952, at 1:30 p.m. to follow the conclusion of the criminal action. The jury in the criminal action returned a verdict against the defendant, Berger, of guilty of the crime of assault and battery, although the State had charged Berger in the criminal case aforesaid with the crime of assault and battery with intent to murder Glover. Before the verdict in the criminal case was returned into court the trial judge requested the remainder of the jury panel, not engaged in hearing the criminal case aforesaid and consisting of some 23 persons, to withdraw from the courtroom until the verdict in said criminal case had been received and the jury discharged. Thereafter it seems the civil case was called. The remaining portion of the jury panel was then brought back into the courtroom and a jury was selected therefrom to try the Glover civil case which concededly involved substantially the same facts as did the criminal action against Glover. It seems to be admitted that the remainder of the jury panel of 23 persons were not present in the courtroom and did not hear the verdict rendered in the criminal case.

Prior to the civil case being called for trial objections were, on October 18, 1952, filed on behalf of the defendant, Berger, to proceed with that trial on October 28, 1952, the date set therefor, on the ground that the defendant could not receive a fair trial because that part of the jury panel not hearing the criminal case would learn of those facts during the course of the criminal trial and request was made that the Glover civil case, which it was stated, would involve the presentation of the same facts as would be submitted in the criminal action be continued until the next jury term in Campbell County. To these objections, plaintiff, Glover, filed a 'resistance' setting out that plaintiff has already prepared for trial twice at a cost of upwards of $350; that if the trial of said cause should be continued it will be more than two years before another hearing of the Glover civil case could be heard and plaintiff will lose the benefit of his existing preparations for trial and be faced with a likelihood of losing important witnesses who were interviewed in the two previous preparations for trial because of their leaving the State of Wyoming. Again on October 28, after the civil case was called for trial counsel for defendant sought again orally for a continuance because of the rendition of the verdict in the criminal case and because a jury panel of only 23 persons were then available to try the Glover civil case. The plaintiff also orally resisted defendant's application for a continuance asserting that plaintiff was ready for trial; that the balance of the jury panel was without the courtroom; that the verdict was rendered in the criminal action; that the civil case had already been set twice for trial and the defendant had not offered to reimburse the plaintiff for his expenses incurred in the preparation for trial as required by statute, § 3-2002, W.C.S.1945, which provides:

'Any court, for good cause shown, other than the absence of evidence, may continue any action at any stage of the proceedings, at the cost of the applicant, to be paid as the court shall direct.'

These applications for a continuance, one written and the other oral, on behalf of the defendant, Berger, were denied by the court and the trial was proceeded with in the civil case resulting in a verdict for plaintiff in the sum of $15,000; $10,000 thereof as compensatory damages and $5,000 as punitive damages. Upon this verdict the court rendered the judgment, now appealed from, as mentioned above.

The facts of the instant case which we are permitted to consider (see Jacoby v. Town of City of Gillette, 62 Wyo. 487, 494, 174 P.2d 505, 177 P.2d 204, 169 A.L.R. 502), and cases cited therein, which have been consistently followed by this court in years past, as told by plaintiff and noncontradictory of other testimony on the witness stand, are substantially these:

Plaintiff testified that he is 32 years old, was born and raised in Crook County. That he knew John Berger and Henry Boles and also Mae Baker and her husband, Darryl Baker; that plaintiff is a rancher running about 2,400 acres and about 27 head of cattle; that he has been on his ranch since he was a...