Stark v. Epler

• Decision Date: 18 July 1911
• Citation: 59 Or. 262,117 P. 276
• Parties: STARK v. EPLER et ux.
• Court: Oregon Supreme Court

117 P. 276

59 Or. 262

STARK v. EPLER et ux.

Supreme Court of Oregon

July 18, 1911

Appeal from Circuit Court, Multnomah County; Earl C. Bronaugh Judge.

Action by Mary A. Stark against John H. Epler and wife. From a judgment for plaintiff, defendants appeal. Affirmed.

The plaintiff, complaining of the defendants, who were husband and wife, alleged: "That on or about September 20, 1907 in the city of Portland, county of Multnomah, state of Oregon,the defendants herein and each of them wrongfully violently, ferociously, and maliciously assaulted the plaintiff herein by striking and beating her upon the hands arms, shoulders and body with their fists and with a hand hatchet or axe or hammer held by the defendant John H. Epler, and by pushing, throwing and crowding the plaintiff against the doorcasing thereby cutting, bruising and wounding the plaintiff on and about the body, shoulders, arms and side causing her body, shoulders, arms and side to be crushed, bruised, lacerated, lame and sore." The complaint contains other allegations more particularly setting forth the alleged resulting injuries and special damages incurred by the plaintiff and closes with a prayer for special damages amounting to $1,000, and further damages in the sum of $10,000 for great mental and bodily pain alleged to have been suffered by the plaintiff. The answer consists of denials, either positive or upon information and belief, of all the allegations of the complaint. On the trial there was a verdict and consequent judgment in favor of the plaintiff for $4,500. The defendants' motion for a new trial having been overruled, they have appealed.

Cleeton & Graham and Wm. D. Fenton, for appellants.

Dan J. Malarkey (John F. Logan, on the brief), for respondent.

BURNETT J. (after stating the facts as above).

The testimony tends to show that the defendants were keeping a rooming house in Portland. The plaintiff, with her husband and children, had rented rooms from the defendants and paid a week's rent in advance. At the end of the week the plaintiff and her family were preparing to leave, when the defendant Sabrina Epler appeared upon the scene and seized a roll of bedding belonging to the plaintiff. A scuffle ensued, each contending for the bedding, when Mrs. Epler called for her husband who appeared armed with a hatchet. In the mlée consequent upon these actions, the plaintiff received the injuries of which she complains. At the trial the plaintiff also gave evidence of some quarrels between herself and Mrs. Epler concerning plaintiff's children and about Mrs. Epler rummaging in plaintiff's trunk.

One thing of which the appellants complain is that in his closing argument to the jury counsel for plaintiff used the following language: "And this action arose out of a crime and these people were tried down in the municipal court, a few days after this thing happened, for a crime. We don't know how that trial turned out--they objected to us showing it, but they were tried for a crime." The defendants, by their counsel, objected to this language, but no ruling of the court was called for, and none made as to this conduct of plaintiff's counsel. There was testimony on both sides given without objection about criminal prosecution of the defendants in the municipal court. There was abundant testimony, also, tending to prove an assault made by the defendants upon the plaintiff. An "assault" is a crime, and the comment of the counsel upon the action of the defendant characterizing it as a crime was legitimate discussion of the evidence. In our judgment no error is shown in this respect.

The action of the court in permitting plaintiff to give evidence about the difficulties occurring between herself and Mrs. Epler over the plaintiff's children is also assigned as error. This testimony was admitted on the acquiescence of defendants' counsel for the purpose of showing malice on the part of the defendant Mrs. Epler, and, having thus concurred, the defendants are in no position to object here on that point.

The same reason, that of proving malice, will justify the admission of heated words used on the occasion of the plaintiff's discovering Mrs. Epler rummaging in plaintiff's trunk.

Appellants further urge that the court was at fault in allowing the plaintiff to show what Mrs. Epler said at the trial in the municipal court about whether the plaintiff and her husband owed the former any room rent at the time she undertook to seize plaintiff's bedding. This was admissible for the purpose of showing that her action in taking the property was without justification, and that her accompanying assault upon the plaintiff was devoid of excuse.

The plaintiff was also allowed to show that at the trial in the municipal court the judge asked Mrs. Epler,...