Jones v. Peterson

• Decision Date: 21 December 1903
• Citation: 44 Or. 161,74 P. 661
• Parties: JONES v. PETERSON. [*]
• Court: Oregon Supreme Court

74 P. 661

44 Or. 161

JONES v. PETERSON. ^[*]

Supreme Court of Oregon

December 21, 1903

Appeal from Circuit Court, Multnomah County; M.C. George, Judge.

Action by Abraham Jones against John H. Peterson. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action to recover damages. It is stated in the complaint that on January 16, 1903, the defendant maliciously assaulted and beat the plaintiff, inflicting upon him certain injuries particularly describing them, in consequence of which he was compelled to employ medical aid, and would be obliged to pay for such service $25, which was a reasonable sum therefor and that by reason of the assault he had suffered great bodily pain, humiliation, and mental distress, to his damage in the sum of $2,525. The answer denied the averments of the complaint, and for a separate defense alleged that any injury sustained by plaintiff was the result of his assault upon the defendant, who in the encounter acted only in self-defense. The reply put in issue the allegation of new matter in the answer, and the trial which followed resulted in a judgment for plaintiff in the sum of $350, from which the defendant appeals.

George J. Cameron, for appellant.

John Ditchburn, for respondent.

MOORE C.J. (after stating the facts).

It is contended by defendant's counsel that the cause of action is based upon the bodily pain, humiliation, and mental distress alleged to have been suffered by plaintiff, but at the trial he was permitted, over objection and exception, to testify that in consequence of the injuries which he claims to have received he was for five weeks unable to follow his usual vocation; and that the court erred in admitting such testimony. In Heneky v. Smith, 10 Or. 349, 45 Am.Rep. 143, the plaintiff, in an action to recover damages resulting from a wound inflicted by the defendant, was permitted to testify that he had not been able to do any work since he was shot, whereupon he was asked, in relation to the members of his family, "Upon whom did the wife and children depend for their support before you got hurt?" and he replied, "They depended on me, and since I was hurt they and me have been supported by my neighbors and the county." It was held that this testimony was admissible as tending to show the extent of his injuries; Mr. Chief Justice Watson, in deciding the case, saying: "If he was not only accustomed, but under the necessity, to labor, to provide the means of support for himself and family previous to his being shot by the appellant, the facts of his not doing any labor afterwards, and of his depending on and receiving support for himself and family from his neighbors and the county, certainly did corroborate his statement that he was not able to labor after receiving the injury complained of, and afforded some evidence for the consideration of the jury in determining its extent and the amount of damages it produced." In the case at bar the damages recoverable in excess of a nominal sum were to be measured by the injury sustained, and the extent of the wrong could be established only by proof of the physical harm inflicted and its necessarily consequential effect upon the plaintiff. If the beating which he received had rendered him a physical wreck, so that he could never thereafter have performed any labor, evidence of his condition would undoubtedly have been admissible, not to prove what sum of money he could probably have earned during his natural life for that was not in issue in the case, but to show the extent of his injury as a basis for determining the damage that necessarily flowed therefrom. Every unlawful assault...