Mecham v. Foley, 7637

• Decision Date: 11 September 1951
• Docket Number: No. 7637,7637
• Citation: 120 Utah 416,235 P.2d 497
• Parties: MECHAM, v. FOLEY et al.
• Court: Utah Supreme Court

Page 497

235 P.2d 497

120 Utah 416

MECHAM, v. FOLEY et al.

No. 7637.

Supreme Court of Utah.

Sept. 11, 1951.

George E. Stewart, Jr., Roosevelt, F. Henri Henriod, Salt Lake City, for appellant.

Rulon J. Larsen, L. O. Thomas, Salt Lake City, for respondent.

WOLFE, Chief Justice.

This is an action to recover damages for assault and battery. It was tried without a jury and judgment was entered for the plaintiff, Le Roy Mecham, for $1,000 general and $100 punitive damages. The case was dismissed with prejudice against the Dry Gulch Irrigation Company. The defendant, Matthew Foley, appeals, contending that the court erred: (1) in dismissing the counterclaim because the evidence indicates that plaintiff was the aggressor (2) in awarding punitive or general damages, neither being supported by the evidence; and (3) in awarding $1,000 general damages, such sum being grossly excessive.

The plaintiff is the owner of a ranch located five miles west of Roosevelt, Utah. On several prior occasions, he had complained to the officers of the Dry Gulch Irrigation Company that he had not received his fair share of water. Defendant was employed as ditch rider for the Irrigation Company. His job was to regulate and supervise the distribution of water to the shareholders in the Irrigation Company. Plaintiff claimed that a week before the fight occurred, his turn to the use of the water had been skipped. He went to see an attorney and asked for legal advice concerning the alleged discrimination. On Saturday, May 27, 1950, the plaintiff and defendant met in the Commercial Club in Roosevelt. A conversation took place between them in which defendant stated that he thought the plaintiff's neighbor, Mr. Milligan, was going to give the water to plaintiff after he was through, but plaintiff said Milligan had not been so directed by the defendant. Defendant told the plaintiff that he should have come to him about the matter; that an attorney could not help him get his water; that he as ditch rider was responsible for all water turns, to which the plaintiff replied, 'The next time I talk to you, you better have a referee there.'

The fight occurred the following Tuesday afternoon at the plaintiff's ranch. The plaintiff testified that he had just closed the pig pen gate when he was struck over the left temple with what he thought to be a blackjack. He did not see what he was struck with, but momentarily glimpsed the face of the defendant, then he blacked out. He testified that he had no recollection of what occurred until he regained consciousness on the front porch of his house. He had taken quite a beating. His nose was bloody, his left eye soon swelled shut, there was a welt on the side of his head and his jaw ached considerably. The defendant stated that he parked his pick-up truck on the road and while his wife waited for him, he walked approximately 500 feet to the plaintiff's corral; that they talked about pasturing some cattle in plaintiff's filed and walked over to a shed together where defendant said that because the water was running over the road that plaintiff could take an extra turn, that plaintiff thereupon cursed him and said, 'what kind of [obscenities] are you trying to pull on me' and hit him. Defendant admits that a fight took place, that each time plaintiff tried to rush him defendant would knock him down. Plaintiff weighs 183 pounds--the defendant 153. After plaintiff quit fighting and lay motionless on the ground, the defendant claims he sat him up, put his hat on and left. There was no other evidence than the conjecture of the plaintiff concerning the use by defendant of a blackjack. The defendant stated it was a first fight, that nothing else was used but their fists. Defendant's shirt sleeve was torn and his cheek skinned. This presents two conflicting versions of the place at which the fight occurred and who struck the first blow. The defendant's wife sitting in the cab of the pick-up truck some 500 feet away testified that she witnessed the entire fight and saw the plaintiff strike the first blow. On the other hand, plaintiff's mother who resides at the Mecham ranch with plaintiff, later went out into the corral and she stated that she found five cigarettes scattered all the way from the pig pen gate to the shed where defendant says the fight started. The inference to be taken from this evidence is that the cigarettes flew out of plaintiff's shirt pocket while the fight was in progress and that it must have started where plaintiff says he was first struck.

The trial court took a view of the premises and observed the demeanor of the witnesses. There is evidence to support his findings 'that the striking by defendant Matthew Foley was malicious, willful, unprovoked and without cause.' The trial court chose to believe plaintiff's version of the fight.

Defendant contends that the evidence does not support any award of punitive damages. But if we are to believe that plaintiff was struck without any warning and then couldn't remember what took place, we must hold that there is a basis upon which punitive damages can be assessed. In Vol. 4 of American Jurisprudence, Assault and Battery, p. 216, it is stated: 'As a general rule, exemplary or punitive damages may be allowed for an assault and battery committed wantonly, maliciously or under circumstances or aggravation.'

This doctrine has been applied by this court in Marble v. Jensen, 53 Utah 226, 178 P. 66; Johanson v. Huntsman, 60 Utah 402, 209 P. 197; and Apostolos v. Chelemes, 77 Utah 587, 298 P. 399. To justify punitive damages for an assault and battery, actual malice may be inferred from the...