Schlessman v. Brainard

• Decision Date: 26 June 1939
• Docket Number: 14386.
• Parties: SCHLESSMAN v. BRAINARD.
• Court: Colorado Supreme Court

92 P.2d 749

104 Colo. 514

SCHLESSMAN v. BRAINARD.

No. 14386.

Supreme Court of Colorado

June 26, 1939

Rehearing Denied July 17, 1939.

In Department.

Error to District Court, City and County of Denver; Otto Bock Judge.

Action by Edward L. Brainard against Gerald L. Schlessman for actual and exemplary damages for assault and battery allegedly committed on the plaintiff by defendant, wherein the defendant filed a counterclaim for defamation of character. To review a judgment in favor of the plaintiff, the defendant brings error.

Judgment affirmed.

Parriott & Cranston, of Denver, for plaintiff in error.

Omar E Garwood and Milton C. Garwood, both of Denver, for defendant in error.

KNOUS Justice.

The defendant in error, to whom we shall refer as plaintiff instituted an action in the district court of the City and County of Denver against plaintiff in error, herein denominated defendant, for actual damages in the sum of $2,000 for injuries said to have been sustained as the result of an assault and battery allegedly committed upon him by defendant. It was further pleaded that defendant, in committing the alleged assault and battery, was guilty of wanton and reckless disregard of plaintiff's rights and feelings, as a result of which plaintiff additionally prayed for exemplary damages in the sum of $2,000. The answer of defendant denied that he committed the wrong of which complaint was made; denied that he was in any manner guilty of wanton or reckless disregard of plaintiff's rights and feelings, or that he in any manner injured plaintiff; affirmatively it alleged that the assault, if one occurred, was provoked by plaintiff; that there was an accord and satisfaction of any damages which plaintiff might have suffered in the transaction, and that at the time of the alleged assault plaintiff was creating a disturbance which the defendant was lawfully acting to suppress by reason of which his laying of hands on plaintiff was justified. By cross complaint defendant sought actual damages for defamation of character arising from words allegedly spoken by plaintiff, in the sum of $2,000 and for $3,000 as exemplary damages in connection therewith.

These several issues were submitted to a jury which returned a verdict in favor of plaintiff for actual damages in the sum of $428, and exemplary damages in the sum of $312. Defendant's motion for new trial was overruled and judgment having been entered in accordance with the verdict, he brings the proceeding here for review.

Although numerous errors are assigned, but two propositions are argued as grounds for reversal. If is first urged that the trial court erred in permitting the jury to award exemplary damages and including the amount thereof in the final judgment below upon the premise that the evidence was insufficient to support an award therefor. It is well established in most jurisdictions that exemplary damages in excess of compensation for the actual injury are recoverable in an action for assault or for assault and battery where the wrongful act was committed recklessly, wantonly or without provocation or excuse. 6 C.J.S., Assault and Battery, p. 902, § 55(1). This rule prevails in Colorado. ' 35 C.S.A. c. 50, § 6; McConathy v. Deck, 34 Colo. 461, 83 P. 135, 4 L.R.A.,N.S. 358, 7 Ann.Cas. 896. The evidence adduced by the respective parties relating to the circumstances which transpired immediately previous to and at the time of the alleged assault, the details of which we feel it unnecessary to relate, was highly conflicting. By the verdict returned it is evident that the jury accepted plaintiff's version of the transaction, which sufficiently disclosed that there was no provocation or lawful excuse for the assault and battery. Where there is evidence of the elements which would entitle plaintiff to a recovery of exemplary damages, the allowance or denial thereof rests in the discretion of the jury. Kinney v. Williams, 1 Colo. 191; Williams v. Williams, 20 Colo. 51, 37 P. 614; Republican Pub. Co. v. Conroy, 5 Colo.App. 262, 38 P. 423. Under such circumstances it is elementary that an appellate court, regardless of its views on the weight of the evidence, must consider this issue as having been conclusively resolved by the jury in favor of the successful party and uphold the verdict. Schreiber v. Burton, 81 Colo. 370, 256 P. 1; Harding v. Harding, 36 Colo. 106, 85 P. 423.

As a second ground upon which defendant relies for reversal he asserts that the court erred in overruling his motion for new trial, which he argues should have been granted because of accident and surprise to the defendant occurring at the trial which by the exercise of ordinary prudence could not have been guarded against; that there was newly discovered evidence material in his defense which he could not produce at the trial, which, it is said, if presented probably would have resulted in a different verdict had a new trial been granted. This dual contention arises in connection with a single answer made in the testimony of a fourteen year old boy who appeared as a witness for plaintiff. At the trial, on direct examination, this witness stated that at the scene of the altercation and immediately thereafter defendant's wife made a remark expressing surprise at defendant's conduct. Plaintiff himself testified that such a remark was made, but both defendant and his wife denied the making of any statement of this nature by her, although she admitted that she did not anticipate defendant striking plaintiff at the time he did.

As grounds of surprise at the trial defendant in his motion for new trial asserts that he interviewed plaintiff's witness previous to the trial and that this witness then stated that he did not hear any of the words spoken at the time of the altercation, whereas at the trial he testified that he heard defendant's wife make the statement mentioned. This same witness for plaintiff previously had testified that he arrived on the scene in time to see defendant strike the plaintiff. At the trial, for the...