Jelly v. Dabney, 4835

• Citation: 581 P.2d 622
• Decision Date: 20 July 1978
• Docket Number: No. 4835,4835
• Parties: Darrell W. JELLY, a/k/a Bud Jelly, Appellant (Defendant below). v. Bill Arnold DABNEY, Appellee (Plaintiff below).
• Court: United States State Supreme Court of Wyoming

Page 622

581 P.2d 622

Darrell W. JELLY, a/k/a Bud Jelly, Appellant (Defendant below). v. Bill Arnold DABNEY, Appellee (Plaintiff below).

No. 4835.

Supreme Court of Wyoming.

July 20, 1978.

Rex O. Arney, Redle, Yonkee & Arney, Sheridan, for appellant.

James N. Wolfe, Sheridan, for appellees.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

McCLINTOCK, Justice.

Darrell W. Jelly, hereinafter referred to as Jelly, the apparently successful participant in a barroom brawl in Sheridan County, Wyoming, appeals to this court from the judgment of the district court of that county awarding money damages to Bill Arnold Dabney, his defeated adversary in a barroom fracas, and denying Jelly's counterclaim for defamation. In asking dismissal of the claim against him, Jelly would have us ignore our long-standing rule permitting the trial court to be the arbiter of the facts and hold as a matter of law that the badly beaten Dabney was the aggressor. We elect not to do so, and will affirm the judgment, both as to the award of damages and as to the denial to Jelly of his slander claim.

On April 18, 1976 Jelly and his friend, Marilyn Howe, drove from Lodge Grass, Montana, to Sheridan, Wyoming. In the course of their return to Lodge Grass and between five and six o'clock in the evening they stopped at the Silver Spur Bar in Ranchester, Wyoming, to visit and socialize. They stayed at the tavern approximately one hour. Howe met and talked with friends, including one Enid Havener, who at the time of the trial was married to Bill. In the course of this conversation, as testified to by Mrs. Dabney, Howe was asked if "she had heard rumors about Bud and Linda having an affair." Bill Dabney, the plaintiff, was also there and entered into the conversation when Enid "told Marilyn to have it confirmed by Bill." This was done and Bill's reply was that "we had heard rumors to that effect, that they were having an affair. * * * He more or less confirmed it, and that's it." Howe became disturbed and at some time during the return trip to Lodge Grass questioned Jelly as to the truth of these allegations. He became upset and angry about this, going so far as to shove her face into the window. So far as the record shows, he did not deny the truth of the rumor.

After their return to Montana, Jelly first tried to contact Linda Dabney, as well as her husband, Jim (Bill's brother), but was unsuccessful and he and Howe returned to the bar in Ranchester where Bill was still sitting at the bar. This was about ten o'clock in the evening. Evidence concerning the altercation is conflicting, with Jelly testifying that as he approached Dabney the latter turned on his barstool, cocked his arm, got off his barstool, and started after Jelly swinging his fists, while the bartender on duty testified that Jelly hit Dabney before he was able to get off the barstool. He also stated that Dabney did not raise his hand in any gesture toward Jelly and that it was not until after Jelly had knocked Dabney against the wall that Dabney began to fall forward. At that point, he testified, the two of them got out into the middle of the dance floor. The only thing that he saw Dabney do was try to cover up. Jelly told a different story. Various other versions were given, and while they are interesting, in our opinion they add up to no more than a conflict of the evidence which by the judgment of the district judge has been resolved in favor of the plaintiff.

Jelly raises three issues on appeal:

1. That he was entitled to use reasonable force to defend himself from Dabney's attack, and therefore that the district court erred in awarding damages to Dabney;

2. That Dabney assumed the risk of harm that arose from Jelly's conduct, and therefore Dabney cannot recover damages and the district court was in error when awarding them; and

3. That Dabney defamed Jelly when he made the statement in question, and that such a statement was actionable per se, and, therefore, the district court was in error in not awarding Jelly damages.

These issues will be addressed as set forth, although we note that the thrust of this appeal is directed toward questions of fact that must be considered together in order that a clear view of the case be obtained.

Although we have stated the rule on appeal numerous times, we again announce that we must assume that the evidence in favor of the successful party is true, leaving out of consideration entirely the evidence of the unsuccessful party that conflicts with it, and giving to the evidence of the successful party every favorable inference which may reasonably and fairly be drawn from it. Laramie Rivers Company v. Pioneer Canal Co., Wyo., 565 P.2d 1241 (1977); Kahler v. Martin, Wyo., 570 P.2d 720 (1977). We will not reverse a judgment of a trial court if the only alleged error relates to a finding based upon evidence in which there is a substantial conflict. Scott v. Elwood, 77 Wyo. 428, 317 P.2d 513 (1957). It should also be noted that here we are faced with a situation where the issues were tried to the court, without a jury, and that court found generally for the plaintiff Dabney and against the defendant Jelly. In like situations the rule is that a general finding is treated as a special finding as to all necessary elements required to sustain the judgment, that these facts so established will be presumed to be established in favor of the party prevailing, and against the party against whom the court finds. This has been the rule in Wyoming since the issue was first presented. Wallis v. Nauman, 61 Wyo. 231, 157 P.2d 285 (1945); True v. Hi-Plains Elevator Machinery, Inc., Wyo., 577 P.2d 991 (1978). Judged by these standards and measured against these rules, the appeal of Jelly with respect to the assault must fail.

The trial court found Jelly the aggressor; we must accept that fact as proven. It is clear that under law the aggressor is not entitled to exercise his privilege of self-defense unless and until he attempts withdrawal from the conflict. Penn v. Henderson, 174 Or. 1, 146 P.2d 760 (1944); Delaney v. State, 14 Wyo. 1, 81 P. 792 (1905); Restatement of Torts, § 63 comment k; Prosser, Torts (4th ed. 1971), § 19. It is true that the Delaney case is criminal in nature, but the law is the same. We have no evidence here that Jelly attempted to remove himself from the fight. If Jelly was the aggressor then Dabney was cloaked with the privilege of self-defense; the contention of Jelly that Dabney assumed the risk of the consequences of the battle is nonsense. One cannot logically raise as a bar to recovery assumption of the risk when another acts in self-defense. We must assume Dabney, not the aggressor, so acted. The conduct of Jelly remained a legal wrong to Dabney notwithstanding the latter's exercise of his privilege. Dabney cannot be held to have voluntarily chosen or have consented to this battery.

There is little to add to the above brief statement concerning the alleged slander. The subject of an "affair" between Jelly and Linda Dabney (wife of Bill's brother Jim) appears to have been opened by Enid Havener, Dabney and Bill confirmed that he had heard rumors to that effect. Ms. Howe testified to the effect that "they" (presumably referring to Enid and Bill) just knew. No attempt was made upon the trial to establish just what the meaning or innuendo of the word "affair" was, nor did Jelly attempt to show any special damage that occurred to him as a result of the alleged slur, such as loss of reputation, position or standing in the community. He now contends that the plain, ordinary meaning of "having an affair" is that one is having an illicit...