Stene v. Hillgren

• Court: South Dakota Supreme Court
• Writing for the Court: SMITH
• Citation: Stene v. Hillgren, 77 S.D. 165, 88 N.W.2d 109 (S.D. 1958)
• Decision Date: 20 February 1958
• Docket Number: No. 9684,9684
• Parties: E. O. STENE, Plaintiff and Appellant, v. Ralph O. HILLGREN, Defendant and Respondent.

Page 109

88 N.W.2d 109

77 S.D. 165

E. O. STENE, Plaintiff and Appellant, v. Ralph O. HILLGREN, Defendant and Respondent.

No. 9684.

Supreme Court of South Dakota.

Feb. 20, 1958.

Gene E. Pruitt, Sioux Falls, for plaintiff and appellant.

James O. Berdahl, Sioux Falls, for defendant and respondent.

SMITH, Judge.

This action is for damages resulting from an assault and battery. The jury awarded plaintiff damages in the sum of $938. In response to an application by defendant the trial court vacated the verdict and granted a new trial. The order was based upon the ground that the jury had awarded excessive damages under the influence of passion or prejudice. Cf. SDC 33.1605(5). Whether, in so doing, the trial court abused its discretion is the sole issue before us.

A building located in Sioux Falls, known as the Nordic Hall, is owned by a corporation and is managed by defendant Ralph O. Hillgren. The Norse Glee Club, by arrangement of long standing, has used the banquet room on each Monday evening. The Glee Club agreed to permit a Mr. McCroskey owner of a nearby bar, to use the banquet hall for a private party on Monday evening, December 31, 1956. Mr. McCroskey had used the hall for a like purpose the year before. Because of the intoxicants consumed at that party and of the condition in which the premises were left, the defendant was opposed to further use of the hall by Mr. McCroskey. When he learned on the afternoon of December 31, 1956, of the proposed further use by Mr. McCroskey he complained to two officers of the building corporation and to the police. The officers of the corporation told him not to worry.

At about 8:30 that evening, plaintiff, a member of the Glee Club, and Mr. Juel, its president, went to the building for the purpose of admitting Mr. McCroskey and his helpers. Defendant Hillgren was on hand and stated that the building could not be used by McCroskey. He said, '* * * we did not want his kind of business in Nordic Hall'. Plaintiff ignored defendant and admitted McCroskey and his helpers. Their supplies included about thirty cases of beer. Defendant finally passed by plaintiff as he departed and said, 'I guess you win this round.'

Plaintiff left the building and did not return until 12:30 when he and his wife, together with some friends, came there as Mr. McCroskey's guests. Dancing was then in progress, and coffee and doughnuts were being served. Beer had been served during the evening and liquor which guests brought with them had been consumed. Plaintiff brought a pint of whisky with him when he returned at 12:30 and drank a little more than one-fourth of it.

At some time before 2:30 defendant returned. Only about twenty guests were then present. Defendant thought they were 'severely under the influence of liquor'. He called the police and a Lieut. Renli came to the building. Defendant testified, 'I told Renli that the Norse Glee Club had illegally sub-let this place and I wanted it clear. These people are clearly trespassers, and they were drunk and I wanted them removed from the place.' After Renli had viewed the situation he, plaintiff and defendant retired to the kitchen. Their conference resulted in a refusal by Renli to do anything. According to Renli defendant Hillgren then said 'I am manager of this place and you are going to have to leave and he grabbed a hold of Mr. Stene's arm and attempted to pull him toward the back door * * * and they fell down, Mr. Stene falling on top of Hillgren, or partially on top of Hillgren and Mr. Stene bumped his head on a--I took it to be a wash sink--cut his head near his eye, and blood was running down his face and on his clothes, * * * and I went out and told everyone to leave, which they did.' Defendant testified 'We were moving toward the rear of the kitchen and Stene was somewhat--was in extreme intoxicated condition. I saw the slop on the floor and I didn't think he could stand on his own feet and I grabbed him by the arm.'

Plaintiff received a deep cut about three-quarters of an inch long near one eye as the result of striking the corner of the sink as he fell. After he arose from the floor, he cleaned the blood from his face and clothes and then left for home. Except for some soreness in his back which persisted for about a week, plaintiff suffered no other injury and within a few days he had fully recovered. He did not see a doctor. Cleaning removed the blood stain from his clothes.

At the outset we are compelled to determine the nature of the damages awarded plaintiff by the jury.

In connection with instructions which dealt at length with compensatory and exemplary damages, the court submitted two forms of verdict. Of the plaintiff's verdict it said, 'If you find for the plaintiff, you will insert therein, in the blank left for that purpose, the actual damages, if any, as determined by you, and if you find that he is entitled to punitive or...