Littledike v. Wood

• Decision Date: 23 March 1927
• Docket Number: 4317
• Citation: 69 Utah 323,255 P. 172
• Court: Utah Supreme Court
• Parties: LITTLEDIKE v. WOOD

255 P. 172

69 Utah 323

LITTLEDIKE v. WOOD

No. 4317

Supreme Court of Utah

March 23, 1927

Appeal from District Court, First District, Cache County; M. C Harris, Judge.

Action by Levi Littledike against Brown H. Wood. Judgment for plaintiff, and defendant appeals.

REVERSED AND REMANDED.

Clark Richards & Bowen, of Salt Lake City, for appellant.

Jesse P. Rich, of Logan for respondent.

STRAUP J. THURMAN, C. J., and GIDEON, J., concur. CHERRY, J., dissents. FRICK, J., died before announcement of decision.

OPINION

STRAUP, J.

This is an action brought to recover damages for an assault and battery. The case, as claimed by the appellant, grew out of a mutual combat between the respondent and the appellant. Respondent claimed both compensatory and punitive damages. The jury awarded him $ 2,500 compensatory but no punitive damages. The court overruled appellant's motion for a new trial on condition that the respondent remit $ 1,000 from the verdict and judgment. Such amount was remitted. The appellant appeals from the judgment.

The principal complaint is this: On the question of damages the court charged the jury that they had the right, and should take into consideration, among other things, "the time lost and that he will probably hereafter lose, if any, as may appear from the evidence, by reason of and as the result of said injury." The point made is that there were no allegations or proof of loss of time or of earnings or of any impairment of earning capacity. It is claimed that such element is special damage and hence is required to be specially pleaded, which was not done; and if not special but recoverable under the description of the injury and the general ad damnum clause, that there was no evidence upon which to base a finding of any damage or loss in such regard. The matter was not specially pleaded. The injury, in the complaint, is described as follows: That the appellant "struck the plaintiff in the mouth with his fist, and knocked two of his front teeth out and loosened a great many more, cut his lower lip and knocked him down, struck him over the eye, kicked or struck him in the side and broke three ribs, which punctured the left lung," and that as a result of the beating the respondent was forced to go to the hospital and remain there several weeks, and was greatly damaged in body and in mind and suffered pain, etc., and that he was permanently injured.

If loss of time or of earnings or impairment of earning capacity naturally and necessarily results from the injuries which are described and of the act complained of, evidence can be given of such loss without specially pleading it. Atwood v. Utah Light & R. Co., 44 Utah 366, 140 P. 137. Such a loss or impairment might not be implied as a natural and necessary result from the allegations that the respondent was struck in the mouth with such violence as to knock out and loosen the teeth as alleged, but may well be implied from the allegations that his ribs were broken and his lung punctured and in consequence of his injuries was required to be confined in the hospital for several weeks and was, as alleged, permanently injured, Such a description of injury shows some loss of time as a natural and necessary result of the injury as alleged. Hence, to entitle respondent to recover for loss of time, it was not essential that such loss be further or specially pleaded.

But the other point, that there is no evidence upon which compensation for loss of time may be ascertained or measured with reasonable or any degree of certainty, is more serious. All the evidence there is no the subject is that the respondent was confined in the hospital for several weeks by reason of his injuries; that his ribs gave him "trouble yet," and hurt him when he did hard work; and that he could not do a day's work as he did before. But no evidence was given as to the occupation or earning capacity or earnings of the respondent, nor as to the value of the time lost or as to what earnings, or the amount or value thereof, were lost by him, nor any evidence to measure the damage or the loss sustained by him in such respect. Under such circumstance, the authorities teach that it was error to direct the jury, as was done, that they had the right to and should take into consideration the time lost by the respondent in assessing the amount of damages. Diamond Rubber Co. v. Harryman, 41 Colo. 415, 92 P. 922, 15 L.R.A. (N.S.) 775; Anderson v. Young, 98 Minn. 355, 108 N.W. 298; Carlile v. Bentley, 81 Neb. 715, 116 N.W. 772; Winter v. Central Iowa Ry. Co., 74 Iowa 448, 38 N.W. 154; Stoetzle v. Sweringen, 96 Mo.App. 592, 70 S.W. 911; Pennsylvania Co. v. Scofield (C.C.A.) 121 F. 814; Haworth v. Kansas R. Co., 94 Mo.App. 215, 68 S.W. 111. The authorities cited by respondent, Picino v. Utah-Apex M. Co., 52 Utah 338, 173 P. 900, and 17 C. J. 780, do not show the contrary. They but hold that loss of time and impairment of earning capacity are proper elements of damages when properly pleaded and when there is sufficient evidence given in such respect upon which to ascertain the value of such loss. There being here no evidence as to the value of the time lost by respondent, nor any evidence by which such value could be ascertained or determined, any allowance made by the jury for loss of time of necessity would rest on mere speculation and conjecture. We are also of the opinion that the ruling was prejudicial, for it cannot be told how much, if anything, the jury allowed for loss of time. It is but speculation that the jury did not allow anything, and if they made an allowance it again is but speculation as to how much they allowed. Candland v. Mellen, 46 Utah 519, 151 P. 341. The erroneous charge was error which was calculated to do harm, and in such case prejudice will be presumed until by the record it is shown that the error was not or could not have been harmful. Boston & Albany R. Co. v. O'Reilly, 158 U.S. 334, 15 S.Ct. 830, 39 L.Ed. 1006; 2 Hayne "New Trial and Appeal," Revised Edition, § 287; Short v. Frink, 151 Cal. 83, 90 P. 200; State v. Cluff, 48 Utah 102, 158 P. 701. The record does not so show.

The court gave this instruction:

"You are instructed that where parties engage in a mutual combat in anger, each is civilly liable to the other for any physical injury inflicted by him during the flight. The fact that the parties engaged in the combat voluntarily is no defense to an action by either of them to recover damages for personal injuries inflicted upon him by the other, and the circumstance, of who committed the first act of violence is not material in an action to recover damages for the injuries he received in the fight. So that in this case, if you find that the parties hereto voluntarily engaged in a mutual combat, from which plaintiff sustained personal injuries, and damages, then your verdict should be in favor of the plaintiff."

Complaint is made of that portion of the charge italicized. The charge is supported by the case of McCulloch v Goodrich, 105 Kan. 1, 181 P. 556, 6 A. L. R. 386, and by the annotation of cases there cited it is said to be, and we...