Oliver Lemon Peck v. Seid Bez, 9832
| Decision Date | 22 October 1946 |
| Docket Number | No. 9832,9832 |
| Citation | 129 W.Va. 247 |
| Parties | Oliver Lemon Peck v. Seid Bez |
| Court | West Virginia Supreme Court |
1. Assault and Battery
Point 2, Syllabus, Wilson v. Fleming, 89 W. Va. 553.
2. Damages
Where, in an action to recover damages for injuries alleged to have resulted from an assault, the plaintiff seeks to recover punitive damages, defendant's counsel should be permitted to inquire of defendant whether he intended to injure plaintiff.
3. Assault and Battery
In an action to recover for personal injuries alleged to have resulted from an assault, a declaration which alleges that the assault was wilful, intentional, and unlawful will support a recovery of punitive damages.
4. Trial
"An instruction to the jury limiting the verdict, if for plaintiff, to the damages sued for, is not erroneous as suggestive of an improper basis of recovery." Point 8, Syllabus, Keath- ley v. Chesapeake & Ohio Railway Co., 85 W. Va. 173.
5. Damages
In a law action in which it is proper for the jury to award punitive damages, evidence as to defendant's financial condition is competent.
6. Damages
Where, in a law action, in which punitive damages are sought, defendant does not request submission of interrogatories asking for a separation of compensatory from punitive damages, punitive damages may be obtained under a general verdict.
7. Trial
An instruction which singles out and lays undue emphasis upon evidence bearing upon the credibility of a witness, to the exclusion of other factors which may be considered by the jury on the question of the witness's credibility, is erroneous.
8. Appeal and Error
This Court will reverse the judgment of a trial court in a case in which, over objection, counsel for the prevailing party is permitted, during the argument to the jury, to make a personal attack on the character of the other party, which is designed to and may prejudice the jury.
Error to Circuit Court, Raleigh County.
Action of trespass on the case by Oliver Lemon Peck against Seid Bez for assault and battery. Judgment on a jury's verdict for plaintiff, and defendant brings error.
Judgment reversed; verdict set aside; new trial awarded.
John Q. Hutchinson, Clay S. Crouse and Grover C. Trail, for plaintiff in error.
W. A. Thornhill, Jr., Lilly & Lilly and R. G. Lilly, for defendant in error.
Oliver Lemon Peck instituted in the Circuit Court of Raleigh County this action of trespass on the case against Seid Bez to recover damages for an alleged wilful, intentional, and unlawful assault and battery on plaintiff. To the judgment in the amount of $23,416.00 in plaintiff's favor, based upon a jury verdict, this writ of error is prosecuted.
The declaration alleges that on May 8, 1944, "* * * in the town of Sophia, Raleigh County, West Virginia, the said defendant, acting without any legal justification or excuse, made a willful and intentional trespass on the person of the plaintiff, and wilfully, deliberately, intentionally, unlawfully, assaulted and beat the plaintiff, in consequence of which the plaintiff was seriously, painfully and permanently injured * * *"; that by reason thereof "* * * the plaintiff then did, ever since has, and in the future will continue to suffer great physical pain, mental anguish and nervousness"; and further damages are alleged in the cost of surgical and medical treatment, and for the disability of plaintiff to follow his usual occupation and loss in time and services, and reduction in future earnings. Defendant filled his plea of the general issue and a special plea alleging self-defense.
Plaintiff testified that on Monday, May 8, 1944, between ten and eleven o'clock at night, he saw defendant coming out of a theater on the main street of the town of Sophia. As defendant turned to the right to go to- ward a building owned by him, known as the Bez Building, situate on the same side of the street as the theater and separated therefrom by a narrow street twelve feet in width, plaintiff approached defendant and asked him to cash a check for four dollars. When defendant told plaintiff that he did not have the money, plaintiff replied, "Thank you, Allah is just." As plaintiff started walking to the door which led to his brother's dental office in the Bez Building, defendant grabbed him by the neck, pushed him to the ground, saying at the same time that he was going to kill him for breaking his "banister", and when plaintiff was on the ground, defendant raised his knee and "caught" plaintiff in the groin, whereupon plaintiff felt "something give", and then defendant turned plaintiff over and kicked him in the back.
According to plaintiff's testimony, defendant's witnesses, Stephen and Hattie Sokola, who had left the theater with Bez and had proceeded toward their apartment in the opposite direction, turned back and came to the place where plaintiff and defendant were engaged in a fight; that Sokola told defendant to let plaintiff up; that after plaintiff got up he could not stand, and he asked the Sokolas to take him home, and told them he was hurt; and that at the Sokolas' solicitation, Bez put plaintiff in the back seat of his car, and with defendant driving and the Sokolas in the front seat, plaintiff was taken to his brother's home, where he lived, and was carried into the yard. Perry Haga, chief of police of Sophia, having been called at Dr. Peck's request, he and Dr. Peck accompanied plaintiff to the jail in Beckley, where he was confined to a cell until the next morning.
But the account of the affray given by Bez and the Sokolas differs materially from plaintiff's version. They testified that they left Bez in front of the theater, the latter going past Peck toward defendant's building; that plaintiff was intoxicated and accosted defendant and asked him for money, which request defendant refused; that as defendant walked past plaintiff, the latter put his arms around defendant, whereupon defendant grasped plaintiff by the shoulders and held him. According to defendant and his two witnesses, plaintiff apologized and thereafter they took plaintiff to his brother's home in defendant's car, after which plaintiff was taken to jail.
Defendant and Sokola testified that the trouble occurred on Sunday night, May 7. On cross-examination Sokola stated he remembered it was Sunday night, because Sunday night was the only night in each week when he and his wife made it a practice to go to the movies. Mrs. Sokola and Perry Haga, the chief of police of Sophia, were unable to recall whether the difficulty occurred on Sunday or Monday.
There is substantial evidence in the record to the effect that plaintiff was intoxicated on the afternoon and evening of the day he was injured. Plaintiff denies that he was intoxicated on that afternoon and evening, but says that he had one or two drinks and some beer during the afternoon and was just getting over a "drunk".
Sokola testified that after he and his wife separated from Bez at the theater door, and "he had walked twentyfive or thirty feet in the opposite direction from Bez as he turned to the right there", he heard scuffling on the street, and turning saw plaintiff with his "hands around from the back", and it seemed to witness that plaintiff was holding defendant's shoulders, "they were dancing around and scuffling around", and for a minute they went into the vestibule of the Bez Building. When witness got there the fracus was over, and defendant was holding plaintiff by the shoulders telling him to behave, and plaintiff was heard to say, Sokola contradicted plaintiff's testimony that defendant had him down and was choking him. Witness said that he asked Bez to take plaintiff home, and thereupon defendant took plaintiff by the arm and helped him into the back seat of the Bez car.
Mrs. Sokola testified that as she and her husband were walking away from the theater, she heard a "shuffling noise * * * like your feet would make on the pavement, * * * and saw somebody going round and round in the vestibule" of the Bez Building; that when she and her husband came to the place where the men were struggling in the vestibule, the trouble was over and both men were standing up, Peck repeating that he was sorry. This witness further testified that after the men were parted, plaintiff "couldn't walk very good"; that defendant took hold of plaintiff's arm and helped him to the car; and that all four then drove to Dr. Peck's house. When they arrived at the house, defendant caught plaintiff by the arm and helped him into the yard. Witness testified, "He [plaintiff] walked."
Evidently for the purpose of showing that plaintiff did not receive his injuries at defendant's hands, the latter produced four witnesses: J. H. Goodman, Elsie Dameron, Millard Dameron, and Bill Brosky, who testified to the effect that on Saturday night, May 6, 1944, plaintiff fell down the stairs which lead from the ground floor to the second floor of the Bez Building. Brosky also testified that he saw plaintiff "the evening before" the difficulty, heard him complain of his leg, and say that "he had fell down some stairs."
To counter this theory, plaintiff, while admitting that the baluster had been broken since the Saturday night before the affray, denied that he had fallen down the stairs and introduced several witnesses who testified as to his condition after the time defendant claims plaintiff received his injuries as the result of having fallen down the stairs of the Bez Building. Dr. A. J. Scheppe, a dentist having an office in the Bez Building in Sophia, testified he saw plaintiff walking down the streets of...
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