Petsch v. Florom, 4485
| Decision Date | 07 August 1975 |
| Docket Number | No. 4485,4485 |
| Citation | 538 P.2d 1011 |
| Parties | Marion PETSCH, Appellant (Defendant below), v. William A. FLOROM, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Frank P. Hill, Riverton, for appellant.
Russell A. Hansen, of White & Hansen, Riverton, for appellee.
Before GUTHRIE, C. J., and McCLINTOCK and RAPER, JJ.
The defendant-appellant brings this case to us, not relying upon any error in the rulings of the court or its instructions during the trial of the case. He candidly admits that the verdict of a jury will not ordinarily be disturbed where the evidence is conflicting but he claims that this case is outside the general rule for the reasons:
1. That there is no credible or substantial evidence in the record to support the verdict of the jury.
2. That there is no conflict in the credible or substantial evidence submitted in this matter, and all such credible and substantial evidence supports the contentions of the defendant-appellant.
3. That the verdict, as given in this matter, was a result of passion and prejudice.
We are obliged to consider this matter upon the basis of the following standard set out in Stock v. Roebling, Wyo.1969, 459 P.2d 780, 784, that:
1
This means we may decide whether there was substantial evidence favorable to the plaintiff without even discussing and reviewing defendant's evidence. We now turn to the plaintiff's evidence and that serving his position.
About May 31, 1973, the defendant-appellant and his wife were the owners and operators of the Sunnyside Trailer Park, Riverton, Wyoming. The plaintiff-appellee, his wife and daughter occupied a space in the court. Both plaintiff and defendant were 66 years of age. At about 5:00 p. m. on May 31, 1973, the defendant went to the trailer space of the plaintiff to inquire about the presence of a large, white, friendly, Husky-type dog the plaintiff had just moments before brought into the park for the first time.
Before approaching the plaintiff, defendant had angrily scolded a little neighbor girl to get her 'goddamed dog' back into her own yard. Defendant came up to their place talking loud and told the plaintiff, who had just arrived, that he was not keeping the dog in the park. Plaintiff replied that he had paid his rent and was going to keep and make a show dog out of the animal. Plaintiff's hands were down and defendant hit him hard, twice, knocking him to the ground, where defendant straddled and hit him again, after which defendant kicked the plaintiff for good measure. Defendant then picked up a garden hoe, hit the white dog with it and went chasing after the animal.
The plaintiff in his own testimony denied being an aggressor in any respect. He stated also that when knocked down he was semi-conscious and only faintly recalls being kicked but his wife testified that whilt plaintiff said nothing after being struck to the ground, he grunted when kicked. He could not talk when lifted to a chair, was dazed, his mouth was bleeding and he was helpless.
Defendant in cross-examination in plaintiff's case in chief, as an adverse party, appeared to take pride in his fistic ability when he described how he 'hit hard and fast both times.' The jury could well have this same impression we reach from a study of the transcript of testimony. He likewise demonstrated a viciousness when he was asked whether he had hit the dog with a garden hoe, and he replied, 'You bet I did(!)'
Defendant attempted to convince the jury plaintiff took a swing at him before he moved to defend himself. His was the only such testimony, however. A witness some 100 feet away with his view obscured by a picket fence, testified that he did not see plaintiff swing at the defendant but did see plaintiff 'waving his arms.'
Plaintiff was taken by ambulance to a Casper hospital where he was attended by an otolaryngologist who then performed maxilla facial surgery on plaintiff. Plaintiff had a fracture of the right and left side of the mandible of the lower jaw. It was necessary to cut through each cheek in order to reassemble the bone fragments, drill holes in and wire them together.
The plaintiff was on a liquid and soft diet for about two months and due to a numbness-a lack of sensitivity-in the front part of his chin, tended to slobber and generally suffer from pain, discomfort and disability. His wife said he made a regular mess of his eating. At the time of trial, he still suffered a numbness in his chin and medical testimony was than, 'It might continue forever, or it might clear in three or four months.'
The jury found for plaintiff and returned a verdict in his favor for the following amounts:
"For medical, hospital expense $ 728.45
"For travel expense 180.00
"For pain of mind and body
and general damage 6,000.00
"We assess as exemplary, punitive
damages 8,000.00 "
---------
Total$14,908.45
We find nothing confusing, inconsistent, unreasonable, improbable or incredible about plaintiff's evidence as contended by defendant; he takes the position that because of the interest of plaintiff and his wife, their testimony should be disregarded. Such a position would prohibit litigants from testifying. Defendant's complaints about the inadequacy of the evidence are no more than the grumbling of a disappointed litigant.
The defendant further contends that there is no credible or substantial evidence in the record showing that the act of the defendant was committed maliciously, willfully or wantonly as is required in order to establish punitive damages. Wilson v. Hall, 1926, 34 Wyo. 465, 244 P. 1002. He refers us to Condict v. Hewitt, Wyo.1962, 369 P.2d 278, 280, laying out the sound rule that, '* * * exemplary damages are not recoverable where there was reasonable excuse for the assault arising from the provocation or fault of the plaintiff, unless the defendant uses unduly excessive or unwarranted froce in accomplishing his purpose.' The defendant asserts in this case that he was provoked by the cursing of the plaintiff, plaintiff's deliberate violation of the rules of the trailer park and his statement that he would continue to violate the rules, and plaintiff's attempt to strike the defendant. Even though plaintiff's jaw was broken, defendant does not believe excessive or unwarranted force was used under the circumstances. It is his contention that this demonstrates that the jury acted with passion, projudice and bias and did not confine themselves to the consideration of the substantial...
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