Linkhart v. Savely
| Decision Date | 24 January 1951 |
| Citation | 190 Or. 484,227 P.2d 187 |
| Parties | LINKHART v. SAVELY. |
| Court | Oregon Supreme Court |
Blaine Hallock, of Baker, argued the cause for appellant. On the brief were Hallock, Donald, Banta & Silven, of Baker.
Austin Dunn, of Baker, argued the cause for respondent. On the brief were Dunn & Jackson, of Baker.
Before LUSK *, C. J., and BRAND **, ROSSMAN, HAY and WARNER, JJ.
This is an action for assault and battery in which the plaintiff Linkhart seeks compensatory and punitive damages from the defendant Savely. It is alleged that the defendant maliciously, without warning, and while plaintiff's back was turned, struck the plaintiff with a metal chair, causing serious injuries. The answer alleges that the plaintiff is a powerful, turbulent and dangerous character; that he was the aggressor in the affray; that he struck the defendant's son-in-law, Wayne Hyde, in the face and then turned and approached the defendant in a threatening and belligerent manner, and that the defendant, in order to protect his said son-in-law and himself, struck the plaintiff with the chair. The case was tried by a jury, and verdict and judgment were rendered in favor of the plaintiff for special, general and punitive damages in the total sum of $5000. The defendant appeals.
The first eight assignments of error relate to rulings on evidence or to instructions given or refused. They must be considered upon the basis of the record as it appeared prior to the return of the verdict, and considering the fact that there was a sharp conflict of testimony upon the material issues in the case. The last two assignments of error relate to the denial of motions for new trial.
The evidence discloses that the persons immediately involved in the altercation were connected with a 'Showdeo', or exhibition, sponsored by the Trail Riders' Club of Baker, Oregon. Pursuant to previous arrangement, the following persons met at the Royal Cafe in Baker after the show: The defendant Savely, his friend, Mrs. Hill, Mr. and Mrs. Wayne Hyde, Mr. and Mrs. Gray Hester and Clyde Ward. Hester was president, Savely, vice president, and Ward was on of the Showdeo judges. Mrs. Hyde was the daughter and Wayne Hyde the son-in-law of the defendant Savely. The party were seated at a table for dinner and thereafter were joined by the plaintiff Linkhart and his wife. The evidence is conflicting as to whether the plaintiff had been invited to join the group. The plaintiff Linkhart is a man 6 feet 2 inches tall, weighing 200 pounds. Before coming to dinner he had been drinking beer and whiskey and during the progress of the Showdeo a controversy had arisen between the plaintiff on one hand, and the defendant and Mr. Ward on the other. There is evidence that the plaintiff stated that he could whip the defendant and that the defendant agreed that 'no doubt he could'. There is other evidence that the plaintiff conducted himself in a belligerent manner on that occasion. After all the persons mentioned had been seated at the table, the plaintiff arose from his place and went over to Mr. Hester's side. Again a dispute ensued and shortly thereafter the plaintiff, Hester, Hyde and the defendant were all standing in close proximity to each other. Tending to support the defendant's position, there is evidence that the plaintiff shoved Hester and indulged frequently in what are known in the west as fighting words. Hyde, a young man 23 years of age, weighing 146 pounds, requested the proprietor of the cafe to quiet the plaintiff or to put him out, stating that there was about to be trouble. When requested to leave, the plaintiff profanely refused, and when Hyde asked the plaintiff to quiet down, the plaintiff struck Hyde in the jaw. His glasses fell to the floor. Hyde testified that just after he stooped over to retrieve his glasses, the plaintiff was 'facing on a slant, almost directly to Mr. Savely', whereupon the defendant Savely hit the plaintiff with the chair. Defendant Savely testifed as follows:
* * *
* * *
'
To the contrary, the plaintiff testified as follows:
A. We were standing in this manner. I was standing at the corner of the table, and Mr. Hester was standing about in this position, and Mr. Hyde was standing about like this, and I said, 'I think, Mr. Hester, that somebody ought to slap a little respect into yourself', and I made an open-handed slap at him, like that, and he ducked back in that manner, and whether my hand touched Mr. Hyde's glasses and knocked them to the floor, or whether it was Mr. Hester ducking my slap, I don't really know, but Mr. Hyde's glasses did fall to the floor, and I stooped like this to see if the glasses had been broken, and they were not broken, and Mr. Hyde stooped over and picked up the glasses, or started to, and the next thing I knew, I was in the hospital. Now, that's exactly what happened.
There was other testimony supporting plaintiff's contention that his back was turned to the defendant when he was struck by the chair. The plaintiff suffered a concussion of the brain, laceration of the scalp and a broken ankle. Hester denies that the plaintiff struck at him and alleges that the blow was directed at Wayne Hyde.
Such, in general, were the issues presented for the consideration of the jury.
The defendant asserts that the court erred in failing to sustain objections to certain questions with reference to alleged special damages. The court received evidence that plaintiff was off work for over a month by reason of his injuries and that his monthly salary was $400. The court also received evidence concerning the amount of the doctor's bill, X-ray and hospital expense. The evidence was received over the objection that the damages were not properly pleaded. The complaint alleged that:
'* * * Plaintiff has suffered special damages in the sum of $488.00; that an itemized statement of said special damages is hereunto attached marked 'Exhibit A' and by this reference made a part hereof.'
Exhibit 'A' attached to the complaint was as follows:
'Exhibit A
'St. Elizabeth's Hospital $25.50
X-rays 12.50
Dr. Roger Biswell 50.00
4 weeks salary at $100 400.00
Total $488.00'
Defendant's first assignment of error is without merit. If he desired more specific allegations concerning special damages he should have filed a suitable and timely motion for that purpose.
The plaintiff also testified as follows:
* * *
* * *
.
Defendant made timely motion to strike the testimony concerning impaired eyesight. The motion was denied and the ruling is made the basis of defendant's assignment of error No. 2.
In Stapleton v. Butensky, 188 App.Div. 237, 177 N.Y.S. 18, the complaint alleged that the plaintiff suffered permanent injuries by reason of the bite of a vicious horse. Pleadings specified 'injuries over his head, laceration of the scalp, severe injuries to the nervous system, and shock'. Evidence was received that by reason of the injury his eyes became blurred and he was required to wear glasses. It was held that the complaint was not sufficiently broad to embrace injury to the eyesight. See also Walker v. Bradt, 225 App.Div. 415, 233 N.Y.S. 388; 25 C.J.S., Damages, § 131, p. 753, and § 135, p. 769; 15 Am.Jur., Damages, § 305, p. 747, and § 306, p. 750. The rule which excludes evidence of special damages which have not been pleaded is peculiarly applicable when the injury is to an organ of such delicacy as the eye. We judicially know that accurate and scientific tests are available by which the condition of the eyes may generally be ascertained on examination by the medical profession. We think the defendant was entitled to notice and an opportunity to secure an examination of the plaintiff's eyes prior to trial. The failure to plead injury to the plaintiff's sight deprived the defendant of such notice. The ruling of the court constituted error. Smith v. Pallay, 130 Or. 282, 279 P. 279.
The third assignment of error fails to comply with the explicit requirements of Rules 13(A), subd. 3, par. a and 13(A), subd. 4, par. a of this court which read as follows:
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