Plecas v. Devich
| Decision Date | 08 November 1928 |
| Docket Number | 4605 |
| Citation | 272 P. 197,72 Utah 578 |
| Court | Utah Supreme Court |
| Parties | PLECAS v. DEVICH |
Appeal from District Court, Third District, Salt Lake County; W. S Marks, Judge.
Action by Milka Plecas against Amanda Devich. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.
Judgment reversed and cause remanded for a new trial.
Frazer & Wallis, of Salt Lake City, for appellant.
King & King and B. E. Roberts, both of Salt Lake City, for respondent.
OPINION
This action was brought to recover damages for an alleged battery. It was an alleged fist and foot combat growing out of a quarrel between two neighboring women living in a Slavonic settlement near a railroad in Salt Lake City. Each alleged a battery committed on the other and claimed damages therefor, the plaintiff by her complaint, the defendant by her counterclaim. The case was tried to a jury, who on January 10, 1927, rendered a verdict in favor of the plaintiff for "$ 1,640.00 for injuries, doctor bill and hospital expenses, $ 500.00 exemplary, and costs"--a total of $ 2,140--on which judgment was entered on the same day for that amount and for $ 49 costs. On the defendant's motion for a new trial, the court made this order.
On March 29, 1927, two months and ten days after the time stated in the order had expired, and without further time having been asked or granted to make the election, the plaintiff served and filed a written consent and acceptance of the judgment so modified and reduced, whereupon an order was entered March 31, 1927, overruling the defendant's motion for a new trial.
The defendant appeals. She complains of insufficiency of the evidence to justify the verdict, of rulings relating to evidence, and of the order overruling the motion for a new trial, urging in such respect that the plaintiff, having failed to make her election within the time stated in the order, made no showing to excuse the failure, and neither asked nor obtained leave to make the election thereafter, the new trial became absolute when the time stated in the order had expired.
The evidence as to the battery is in conflict. According to the testimony of the plaintiff, she sent a note to the defendant living near by stating:
In about five minutes the defendant came along the street talking loudly and swearing, entered plaintiff's house, and, after a few words and calling the plaintiff and her daughter "a whore and bad names," the defendant with her fists struck the plaintiff on the eye and head and kicked her several times in the stomach, knocking the plaintiff down and rendering her dizzy but not unconscious. The testimony of the plaintiff was corroborated by her daughter 15 years of age, who was present but did not interfere because as she testified of fright and of the defendant's threatened violence if she did interfere. The defendant was about 5 feet 11 inches tall and weighed about 265 or 270 pounds. The plaintiff was a small woman about 5 feet tall.
According to the testimony of the defendant, the note read, "old whore what for you tell everybody I owe you money;" that the defendant showed the note to her husband and to others, and, against the advice of her husband, went over to the plaintiff's house, but, as she testified, did not enter it, only stood on the porch by an open screen; that she took the note with her and said to the plaintiff, "Milka, dear, you think I am worthy what you say and what you write in this letter?" that the plaintiff replied, "Yes," whereupon the defendant said, "I help you all time, and you tell me a name like that, don't you be ashamed," and told plaintiff to take and keep the letter and say nothing about it and "give me the money that you owe me;" that the plaintiff took the note, threw it in the hall, opened the screen door, and hit the defendant "on my mouth and teeth," got hold of her sleeve and hair and tried to pull her in the house; that the defendant jumped off the porch, and as she jumped the plaintiff kicked her and something struck her in the back; that her lip was cut and bleeding, her eye black and swollen, her teeth knocked loose, and one of them later extracted. The testimony of the defendant that she was not in plaintiff's house, only on the porch or steps, and that the plaintiff struck her, is corroborated by the testimony of several witnesses.
Each denied she struck the other. The plaintiff called the police, who talked with both the plaintiff and the defendant. Each gave the policeman her version of the affray. No arrest was made. Each claimed permanent injury, the plaintiff an injury to the uterus, causing frequent hemorrhages, of which the plaintiff claimed she was still suffering at the time of the trial. Soon after the affray, she went to bed and sent for a physician. He found black and blue spots on her shoulder, knee, back, and abdomen below and to the left of the naval, "a flowing of a hemorrhagic type, more than ordinary flowing and of greater character, we call it really a small hemorrhage," for which he sent her to the hospital for five days, where she was attended by him, and since that time he attended her at intervals up to the time of the trial. The physician expressed an opinion that the hemorrhage could be caused by violence to the abdomen from kicking. The defendant called several witnesses who testified that the plaintiff, for some time prior to the affray, was afflicted with and complained of female or uterine trouble, and stated that she would be required to undergo an operation to get relief. The defendant also called several physicians who testified that it was highly improbable that the hemorrhages of which the plaintiff complained were due to having been kicked or struck in the abdomen as claimed by her, and that the hemorrhages could not reasonably be attributed to such a cause. The plaintiff, however, testified that she suffered from no such trouble prior to the affray.
The defendant claimed she, too, was permanently injured in the back. She, too, summoned a physician shortly after the encounter, and because of her injuries used crutches, as she testified, for about a month. The doctor testified the defendant had a bruise on the lip, two teeth were loose, one of them extracted by a dentist, and that the defendant complained of pain at the back of the head and of pain in the back, which he called a sprain of the sacroiliac joint, for which he treated her for several months.
With the aid of admittedly skilled physicians and surgeons of both alleged combatants, it is to be hoped a speedy recovery of both without further complications may be effected shortly after this litigation is finally ended, and that by the encounter at least the chastity of both combatants has been vindicated.
It is the contention of the defendant that the uterine hemorrhages, the principal injury complained of by the plaintiff, were not the result of nor attributable to the alleged battery. While the evidence in such respect is frail and not very persuasive, yet, considering the portion of it most favorable to the plaintiff, as we are required to do, we think it sufficient to support a finding to the effect contended for by the plaintiff.
It also is claimed the court erred in submitting to the jury the question of punitive damages. There is evidence to show that the combat was not mutual; that the defendant was the aggressor; that she, angered by the note received by her, against the advice of her husband, marched down the sidewalk cursing and swearing, stormed and entered the residence of the plaintiff, called her vile names, and beat and kicked her to the floor, necessitating hospital and medical care and the attention of a physician for several months thereafter. According to the testimony of the plaintiff, the character of the note was not such as to provoke an assault. The battery thus was without provocation or excuse. That the battery, viewed from plaintiff's evidence, was inexcusable, intentional, designed, wanton, and malicious may not be doubted. The court thus did not err in submitting the question.
The court, after charging the jury as to compensatory and punitive damages, charged that if the defendant "used unlawful unnecessary and improper force on the plaintiff and that such force so used by said defendant upon said plaintiff was the natural and approximate cause of...
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