Matsuda v. Hammond

• Decision Date: 27 December 1913
• Citation: 77 Wash. 120,137 P. 328
• Court: Washington Supreme Court
• Parties: MATSUDA v. HAMMOND et al.

137 P. 328

77 Wash. 120

MATSUDA v. HAMMOND et al.

Supreme Court of Washington

December 27, 1913

Department 2. Appeal from Superior Court, Pierce County; C. M Easterday, Judge.

Action by Manza Matsuda against Jennie H. Hammond, doing business as Hammond & Company, and another. From a judgment for plaintiff, defendants appeal. Affirmed in part, and reversed and remanded in part with instructions.

Frank H. Kelley and Ralph Woods, both of Tacoma, for appellants.

Edwin F. Masterson and John E. Owen, both of Tacoma, for respondent.

FULLERTON J.

This action was brought by the respondent against the appellants to recover damages for personal injuries received in an assault and battery committed upon the respondent's person by the appellant John Bell. For some time prior to the assault, the appellant Hammond conducted a produce commission business in the city of Tacoma. The appellant Bell was her manager, and at the time of the assault had full charge of her business; Mrs. Hammond then being away from Tacoma on a visit to the eastern states. The respondent conducted a fruit and vegetable stall in the Tacoma public market. He traded somewhat extensively at Mrs Hammond's place of business, always paying cash for the produce purchased. He was at her place of business on the evening preceding the day of the assault making certain purchases, and when he left the appellant Bell conceived the idea that he had carried away a crate of strawberries for which he had not paid. Bell told one of the deliverymen to call upon the respondent on his return that evening and demand payment for the crate. The deliveryman on his return reported that he was not able to collect the amount demanded as the respondent denied taking the berries. The appellant Bell on the next day went himself to the respondent's place of business and demanded that the respondent pay for the berries, telling him that if he did not pay for them at once he would have him arrested for larceny. The respondent again denied taking the berries, and during the altercation which followed Bell became abusive, whereupon the respondent told him to go away. Bell then struck him in the face with his fist, breaking his nose, and causing it to bleed somewhat freely. After striking the blow, Bell immediately left the place, going back to his employer's place of business. The injury caused the respondent some suffering, kept him away from his place of business for some three weeks, and left his nose deformed. On the trial of the action the jury returned a verdict in the respondent's favor for the sum of $556. A motion for a new trial was filed, on the hearing of which the court held the verdict excessive, and gave the respondent an option to take a judgment for $400 or submit to a new trial, reciting in its order that the verdict 'appeared to have been given under the influence of passion and prejudice.' The respondent accepted the first alternative, and judgment was entered in his favor for $400 against both appellants.

The appellants first assign that the court erred in the exclusion of evidence. A witness on behalf of the appellants testified that, after Bell had struck the respondent, the respondent picked up a paper rack on which there was a small roll of wrapping paper, when he was seized by some one standing near. On motion of the respondent, this evidence was withdrawn from the jury on the ground of immateriality. The appellants argue that it was a part of the resgestae, and hence its exclusion is error under all circumstances. But the rule is not thus broad. While matters pertaining to the res gestae are usually admissible, they must bear some material relation to the principal fact in question before it is error to exclude them. When they are not closely related, the court may exercise a discretion in their admission or exclusion, and its ruling will be reviewed for error only when it is evident that its ruling has operated to the prejudice of the complaining party. Under the facts disclosed by the record, we are unable to say that the court did not properly exercise its discretion in this instance. Prior to the commission of the act attempted to be shown, the assault and battery had been completed, and the appellant had started away from the scene. The respondent's subsequent conduct could hardly be so closely related to the principal question in issue as to make its exclusion reversible error.

It is next assigned that the court erred in refusing to set aside the verdict after it found that the verdict appeared to have been entered under the influence of passion and prejudice. Unquestionably, the court could without committing reversible error have set the verdict aside and granted a new trial for the reason assigned, but under our practice it was not compulsory upon it to do so. From the order as a whole it is evident that the judge was led to the belief expressed in the order solely because of the size of the verdict, as he found no fault with the conclusion of the jury that the respondent was entitled under the evidence to some recovery. It was therefore within his province either to grant a new trial unconditionally, or to grant it on the condition that the respondent refused to accept a judgment in such sum as he conceived the jury were warranted in finding as compensation for the injury. In so far therefore as the judgment affects the appellant Bell, we find no reversible error in the record.

On behalf of the appellant Hammond, the additional contention is made that the appellant Bell, when he assaulted and beat the respondent, was not acting within the scope of his authority. This contention we think is well founded. The authority of Bell as shown in the record was to act as general manager of Mrs. Hammond's business. This grant of...