Johanson v. Huntsman

• Decision Date: 09 June 1922
• Docket Number: 3763
• Citation: 209 P. 197,60 Utah 402
• Court: Utah Supreme Court
• Parties: JOHANSON v. HUNTSMAN

209 P. 197

60 Utah 402

JOHANSON v. HUNTSMAN

No. 3763

Supreme Court of Utah

June 9, 1922

Rehearing denied September 6, 1922.

Appeal from District Court, Fifth District, Millard County; Joseph H. Erickson, Judge.

Action by Edward G. Johanson against G. R. Huntsman. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.

AFFIRMED.

J. A Melville, Jr., of Salt Lake City, and T. M. Ivory, of Fillmore, for appellant.

W. G. Higgins, of Fillmore, and J. H. McKnight, of Nephi, for respondent.

THURMAN, J. CORFMAN, C. J., and WEBER, GIDEON, and FRICK, JJ., concur.

OPINION

THURMAN, J.

This is an action to recover damages for an alleged assault and battery. The complaint in substance alleges that on the 15th day of July, 1920, in Millard county, Utah the defendant did unlawfully, wrongfully, willfully, and maliciously commit an assault and battery against and upon the person of plaintiff, and did then and there brutally beat and batter the plaintiff by means of his fist and a heavy stick of wood, until plaintiff was rendered unconscious; that plaintiff has thereby suffered serious, painful, and permanent injuries, to his damage in the sum of $ 20,000.

Defendant by his answer denies the allegations of the complaint, and affirmatively alleges that at the time of the alleged grievances charged in the complaint, and prior thereto plaintiff was engaged in transporting freight and express from Oasis and Delta to Fillmore, Utah and had at various times hauled freight and express for defendant; that the service so rendered by plaintiff for defendant was not satisfactory, and that in June, 1920, defendant personally notified and instructed plaintiff not to haul any more freight or express belonging to defendant, or accept the same from the railroad company; that, notwithstanding such notice and instructions, plaintiff on the 15th day of July, 1920, attempted to deliver to defendant, at his place of business in Fillmore, a C. O. D. express package, and demanded payment of the charges due thereon; that defendant refused to accept the package, and thereupon plaintiff became angry and ill-tempered, and used offensive, vile, and opprobrious language toward defendant, and created a disturbance in defendant's place of business; that defendant thereupon requested plaintiff to leave his said place of business, which plaintiff refused to do, whereupon the defendant then and there removed the plaintiff therefrom, and in doing so used no unnecessary violence; that said acts of defendant are the matters complained of in plaintiff's complaint.

The jury to whom the case was tried found for the plaintiff and awarded him damages in the sum of $ 2,000. Defendant moved for a new trial. The motion was denied, and from the judgment entered defendant appeals. The errors assigned relate to evidence admitted over defendant's objections, the giving of certain instructions to the jury, the refusal to instruct as requested by defendant, and the overruling of defendant's motion for a new trial.

There is substantial evidence in the record to sustain the following facts: That at the time of the alleged assault, and for some time previous thereto, plaintiff was engaged in transporting freight and express matter from Oasis and Delta to Fillmore, and during the same period of time defendant was carrying on business as a merchant at the last-mentioned place; that in June, previous to the alleged assault, defendant became dissatisfied with plaintiff, for some reason not explained in the record, and requested plaintiff to not haul any more freight or express matter belonging to defendant; that on the 15th day of July, 1920, plaintiff entered defendant's store at Fillmore and attempted to deliver an express package C. O. D., addressed to defendant, and informed defendant that there was due thereon the sum of 78 cents, which he had advanced to the agent, and 22 cents for his own services, aggregating the sum of $ 1, which amount the plaintiff then and there requested defendant to pay; that defendant refused to pay the amount demanded, and told the plaintiff to take the package away; that it was nothing but advertisements, and to plaintiff to get out of the store. To this plaintiff replied, "I am pleased to go as soon as I get my dollar." At this point, according to the testimony introduced in behalf of the plaintiff, defendant took from the counter a wagon felly, consisting of a piece of wood weighing about 6 pounds, and struck plaintiff on the left side of the head, from the effects of which plaintiff would have fallen to the floor, if he had not supported himself by holding to the counter. The counter was a little over 3 feet wide. Defendant was behind the counter, and plaintiff was on the opposite side. A gash described as about one inch long was cut in plaintiff's scalp, from which the blood flowed with considerable profusion. After the blow was struck, defendant started around the counter towards plaintiff. He was intercepted by his son and another person. Plaintiff then left the store, and called upon a physician, who dressed the wound, after which he went to his home, several blocks distant.

There is more or less evidence as to what was said by plaintiff and defendant just before the assault occurred, each of the parties charging that the other used profane and opprobrious language; but as to these charges there is a sharp conflict in the testimony, and for that reason we have not deemed it necessary to state the evidence in detail. As to the extent and permanency of plaintiff's injury, plaintiff testified, in substance, that since the injury he has been subject to spells of dizziness and headache; that it makes him dizzy to stoop over; that he does not sleep well; that he has not felt as strong as he did before; that he has not been as able to do hard work. Plaintiff was 58 years old at the time of the trial in August, 1921.

It certainly cannot seriously be contended that the evidence is insufficient to support a verdict for substantial damages. To this should be added the further fact that the evidence tended to show that the defendant displayed some ill will toward the plaintiff, and probably would have inflicted further injuries upon him, if he had not been prevented by parties present when the assault was made. The jury were justified, under the evidence, in arriving at the conclusion that the assault and battery was not only without just provocation or excuse, but that it was also willful, wanton, and malicious. In such case the rule in this jurisdiction is that exemplary damages may be awarded. Hirabelli v. Daniels, 40 Utah 513, 121 P. 966; Marble v. Jensen, 53 Utah 226, 178 P. 66.

Appellant assigns as error numerous instructions given to the jury. For convenient reference these instructions as numbered will be quoted in full. Their effect will be considered in the order adopted by appellant:

"No 5. You are further instructed as a matter of law that if you believe from the evidence in this case that, on the date alleged in the plaintiff's complaint, the defendant maliciously assaulted the plaintiff, and that said assault was unlawful, unnecessary, and malicious, you may assess such damages as the plaintiff actually suffered, and in addition thereto you may assess a reasonable amount against the defendant as exemplary damages, which may act both as punishment for his wrongful act and as a warning to others not to commit an unlawful assault.

"No. 6. You are further instructed that, if you believe from the evidence in this case that at the time of the alleged assault the plaintiff was in the store of the defendant upon a lawful and peaceful errand, and had committed no act of violence against the defendant or his property, nor attempted to, from which defendant feared or had reason to fear any immediate injury to either himself or property, or to any other person legally in said store, and if you further believe from all the evidence that the defendant requested the plaintiff to leave said store, and that plaintiff did not instantly leave or depart from said store, yet the defendant would not be entitled to use a deadly or dangerous weapon upon the plaintiff in attempting to eject him from his store.

"No. 7. The defendant has admitted in this case that the plaintiff came into his store upon the date defendant is alleged to have assaulted the plaintiff, and that thereupon defendant ordered plaintiff to leave his store; that the plaintiff refused to comply with such request, whereupon defendant, with only such force as was necessary for such purpose, ejected the plaintiff from said store; and I charge you that if you believe from the evidence in this case that, before making any effort to remove the plaintiff from his store by reasonable and fair means such as a reasonably prudent man would have done under such circumstances, the defendant struck the plaintiff on the head with some heavy piece of wood, and in such act used force and violence upon the plaintiff which was unreasonable and unnecessary, and for which there was no provocation or excuse, then and in that event you should find for the plaintiff.

"No. 8. You are further instructed that, if you find for the plaintiff, that is, if you find that, upon the date alleged in the complaint, the defendant used unlawful, unnecessary, and improper force upon the plaintiff, and that such force was not such force as under all the circumstances would be calculated to eject the plaintiff from the store of the defendant, you may assess against the defendant such damages as would be the natural and proximate consequences of such act.

"No 9. You are further instructed that Huntsman cannot plead justification for striking Johanson with a deadly weapon in defense...