Horky v. Schroll

• Decision Date: 07 March 1947
• Docket Number: 32159.
• Citation: 26 N.W.2d 396,148 Neb. 96
• Parties: HORKY v. SCHROLL et al.
• Court: Nebraska Supreme Court

26 N.W.2d 396

148 Neb. 96

HORKY v. SCHROLL et al.

No. 32159.

Supreme Court of Nebraska

March 7, 1947

Syllabus by the Court

1. In an action for assault and battery, the recovery is limited to compensatory damages and evidence of threats or words and acts of provocation are not admissible in mitigation thereof.

2. The admission of cumulative evidence is ordinarily within the discretion of the trial court and its ruling thereon will not be held erroneous unless it clearly appears that such discretion has been abused.

3. Where the instructions as a whole clearly present the issues of fact and applicable law to the jury, harmless error in instructions separately criticized on appeal does not require a reversal of the judgment on the verdict.

4. A verdict may be set aside as excessive by the trial court or on appeal only when it is so clearly exorbitant as to indicate that it was the result of passion, prejudice mistake, or some means not apparent in the record, or it is clear that the jury disregarded the evidence or rules of law.

5. Haman v. Omaha Horse Ry. Co., 35 Neb. 74, 52 N.W. 830, is distinguished and overruled insofar as in conflict with this opinion.

Blackledge & Sidner, of Kearney, for appellants.

Lamont L. Stephens, of Loup City, for appellee.

Heard before SIMMONS, C. J., PAINE, CARTER, YEAGER, and CHAPPELL, JJ., and NUSS, District Judge.

CHAPPELL Justice.

Plaintiff instituted this action to recover damages for assault and battery. A jury awarded a verdict for $2,500, upon which judgment was entered. Defendants' motion for new trial was overruled, and they appealed to this court, assigning as error that: (1) The trial court erred in denying defendants the right to plead or prove acts of provocation; (2) erred in permitting plaintiff to cumulate evidence as to the circumstances of the assault which was allegedly admitted by defendants' answer; (3) erred in giving instruction No. 9; and (4) that the verdict was excessive. We conclude that the assignments cannot be sustained.

Defendant Ferdinand Schroll is the son of defendant Ignes Schroll. Hereinafter they will be designated as defendants, or as father and son respectively. At the time of the alleged assault, plaintiff, a farmer, was 56 years old, weighed 170 pounds, and had high blood pressure, heart trouble rheumatism, and a deformed right arm, while the son, a young farmer who struck the blows, was 19 years old and weighed 175 pounds.

Plaintiff, in his amended petition, alleged substantially as follows: That on September 22, 1945, on a public street in Ravenna, the son unlawfully assaulted plaintiff and struck him a large number of blows with his fists in and about his face and head thereby knocking plaintiff to the pavement and rendering him unconscious, whereat the son, clad in shoes, kicked him about the head. That immediately before and during such assault the father was present and by word of mouth counseled, encouraged, advised, and directed the son to commit the assault and battery, saying repeatedly 'Hit him,' 'Hit him again,' 'Kick him,' and like words. That as a result of the assault and battery, plaintiff was cut, wounded, bruised, and nervously shocked, requiring medical aid with expenditures therefor, suffered great humiliation, physical and mental pain and anguish, and was permanently scarred and injured.

Defendants' answer, after denying generally, admitted that the son struck plaintiff but denied that he was at any time rendered unconscious or that he suffered injuries of the nature or extent alleged. They denied that the son kicked plaintiff or that the father at any time said 'Kick him' or that he committed or caused to be committed any assault and battery upon plaintiff. It was admitted, however, that during the course of the altercation the father said to the son 'Hit him again.' They alleged that any damage plaintiff may have sustained was due entirely to his own acts, in that when the son, without threat or gesture asked plaintiff in substance if he still meant what he had said about him, plaintiff clenched his fist, raised his arm, and with a threatening gesture toward the son, caused and provoked the altercation that ensued.

Defendants' answer originally also contained allegations substantially that plaintiff provoked the assault in that for many weeks prior to September 22, 1945, he had many times, to different persons and in the presence of third persons, falsely and maliciously conducted a continuous campaign of slander and vilfication of the son, as 'slacker'--'coward'--'yellow'--'afraid to fight,' because he was not in the military service, when as a matter of fact, the son had been rejected for physical disability.

The first assignment of error relates to their complaint that the trial court, upon motion of plaintiff, struck the latter allegations from their answer and refused the admission of evidence in support thereof.

Defendants do not argue that such evidence was lawfully admissible for the purpose of showing justification, but argue that it was admissible to mitigate the damages actually resulting from the assault, or for the purpose of assisting the jury in fixing and determining the actual amount of the damages suffered by plaintiff, insofar as it would have a bearing upon the question of the extent of the alleged humiliation suffered by him.

In Haman v. Omaha Horse Ry. Co., 35 Neb. 74, 52 N.W. 830, 831, it was said: 'All the authorities agree that words of provocation alone will not justify an assault. * * * Where, however, the provocation is recent, it may be shown in mitigation of damages.' It will be noted, however, that the defense in that case was justification and the latter sentence of the above quotation may be considered as dicta merely. In any event, it does not correctly reflect the law in this jurisdiction and insofar as in conflict herewith, it is overruled. That conclusion is supported by Mangold v. Oft, 63 Neb. 397, 88 N.W. 507, 508, wherein it was said: 'But the defendant insists that the evidence of previous threats was admissible in mitigation of damages. In this state, the recovery in cases of this kind is limited to compensatory damages. No recovery can be had of punitive or exemplary damages. In theory, at least, the damages recoverable are the pecuniary equivalent of the injury. By offering such evidence in mitigation of damages, the defendant admits the assault, and that it was wrongful. As the law will not permit any assessment of damages against the defendant by way of punishment, neither will it permit any reduction of the pecuniary damages actually sustained by the plaintiff, for that purpose. In short, threats cannot be shown in mitigation of compensatory damages. Goldsmith['s Adm'r,] v. Joy, 61 Vt. 488, 17 A. 1010, 4 L.R.A. 500, 15 Am.St.Rep. 923.'

Also, in Glassey v. Dye, 83 Neb. 615, 119 N.W. 1128, 1129, it was said: 'The sixteenth instruction given by the court told the jury that, if it believed from the evidence that plaintiff recently before the alleged assault had used provocative and threatening language toward the defendant, and at the time by language and conduct aggravated defendant into making an unlawful assault, they might take such circumstances into consideration in mitigation of damages. * * * Since punitive damages cannot be recovered in this state, it logically follows that the rules with regard to the mitigation of such damages, which obtain in states where exemplary damages are allowed, are not applicable here, and the above instruction is erroneous for that reason also. Mangold v. Oft, 63 Neb. 397, 88 N.W. 507.' See, also, Langdon v. Clarke, 73 Neb. 516, 103 N.W. 62; 2 R.C.L., Assault and Battery, § 68, p. 587; 4 Am.Jur., Assault and Battery, § 165, p. 204; 5 C.J., Assault and Battery, § 116, p. 676, 6 C.J.S., Assault and Battery, § 44(e), p. 867.

In the headnote to the annotation in 63 A.L.R. 890, it is said: 'There is a conflict of authority as to whether provocation may be shown in mitigation of compensatory damages, the better reasoning and the weight of authority supporting the rule that actual or compensatory damages are not in any case subject to mitigation by proof of mere provocation or of malice.' The two Nebraska cases heretofore quoted from are cited, among many from other jurisdictions, as adhering to the majority, and we still do so.

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