Stene v. Hillgren

• Decision Date: 03 September 1959
• Docket Number: No. 9752-,9752-
• Citation: 78 S.D. 1,98 N.W.2d 156
• Parties: E. O. STENE, Plaintiff and Respondent, v. Ralph O. HILLGREN, Defendant and Appellant. a.
• Court: South Dakota Supreme Court

Page 156

98 N.W.2d 156

78 S.D. 1

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

No. 9752-a.

Supreme Court of South Dakota.

Sept. 3, 1959.

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

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

HANSON, Presiding Judge.

Plaintiff seeks both compensatory and punitive damages in this action for an alleged malicious assault and battery. The action has been twice tried to a jury and is here for the second time on appeal. On the first trial the jury awarded plaintiff a verdict in the amount of $938. This verdict was vacated by the trial court and a new trial granted upon the ground of excessive damages appearing to have been given under the influence of passion or prejudice. We affirmed on appeal by plaintiff. See Stene v. Hillgren, S.D., 88 N.W.2d 109. A second trial followed in which the jury awarded plaintiff a verdict for compensatory damages in the amount of $50 and punitive damages in the amount of $750. Defendant moved for a new trial alleging, (1) misconduct of the jury in arriving at a quotient verdict, and (2) an excessive verdict, particularly as to punitive damages, appearing to have been given under the influence of passion or prejudice. The motion for a new trial was denied and defendant appeals from that order and from the judgment.

Viewing the evidence in the light most favorable to the plaintiff, as we are obligated to do, it appears the assault took place at a New Year's Eve party held in the Nordic Hall at Sioux Falls. The Nordic Hall in a one-story building with a full basement owned by an association or corporation. It was erected for cultural purposes as a memorial to pioneers of Scandinavian ancestry. The defendant, Ralph O. Hillgren, was employed as part-time manager and custodian. His duties primarily concerned the basement which contained meeting rooms, a banquet hall, and kitchen. The main floor was leased for business offices.

Before Hillgren became manager of the Nordic Hall the Norse Glee Club had been given exclusive use of the basement on Monday evenings for their rehearsals, meetings, and social gatherings. The plaintiff, E. O. Stene, was a member of this singing group and, as such, was given a key to the building.

In 1955 the Norse Glee Club leased the Hall to Mr. McCroskey, owner of a nearby bar, for a private party. In November 1956 the Glee Club again authorized McCroskey to use the Hall for a New Year's party on Monday evening December 31, 1956.

Mr. Hillgren learned of the McCroskey party the afternoon of December 31st. He immediately contacted the President and the Secretary-Treasurer of the Nordic Hall Association. Both officers advised him, in effect, to let the party go on and not to worry about it. Instead, Hillgren went to the police station about 6:00 o'clock in the afternoon and sought aid. The police refused to help.

About 8:30 in the evening plaintiff and the President of the Glee Club, opened the Hall for McCroskey. Hillgren was standing inside the front door when they arrived. Nothing was said between plaintiff and Hillgren at the time. After letting McCroskey's helpers into the building plaintiff, his wife, and some friends went to Giovanni's Restaurant for dinner. They returned to the Nordic Hall about 12:30 to join McCroskey's party as invited guests. Dancing was in progress and beer, coffee, and doughnuts were being served. Some guests were partaking of their own more potent liquid refreshments. Like them, plaintiff had a pint of whiskey for the use of himself and his friends. During the course of the evening plaintiff consumed about a fourth of the pint.

In the meantime Mr. Hillgren was in and out of the Hall several times. He called the police department again at 9 o'clock and was informed he would have to do his own policing. He looked in at the party around midnight. At 2:40 he returned and advised McCroskey it was time to close up. McCroskey said he was Stene's guest and wouldn't leave until he left. Stene told Hillgren 'the fun is just beginning.' Hillgren then called the police and Lt. Merl Renli responded.

After looking over the party the police officer held a conference with Hillgren and Stene in the kitchen. The officer told them 'it was a private place, probably a private party and I didn't think I had jurisdiction to close it up.' He further testified: 'Well, this went on for quite sometime all about the same story as one said, they had a right to be there, one said the other didn't have a right to be there and finally Mr. Hillgren says, well, I am manager here and I am asking you to leave and he grabbed ahold of Stene's arm and pulled on him and Stene pulled back to jerk loose from him and they both fell down.' According to the police officer Stene might have been slightly under the influence of liquor but he would not consider him drunk. In his opinion Mr. Hillgren was not attempting to steady Stene on his feet when he grabbed hold of him but was attempting to eject him from the place.

Plaintiff's version of the incident was as follows:

'Q. What was said and done at that time and place? A. Mr. Hillgren thought that the hall should be cleared, that we had no right there and the policeman told him he couldn't see anything wrong with what was going on, that it was a private party and he had no business to stop the party and that it was just back and forth on the same subject.

'Q. Now, did Mr. Hillgren appear to be angry or excited or agitated? A. No, I didn't think he was angry right at the time we were talking.

'Q. Then what happened? A. Well, we were standing there and all of a sudden he just made a lunge at me and down we went.

'Q. What was said by Mr. Hillgren or by you just before he made the lunge at you? A. Well, I believe that happened right after the policeman had told him that he seen no reason to stop the party.

'Q. You were not engaged in a heated discussion with Mr. Hillgren at the time? A. No.

'Q. Were you prepared for the lunge? A. No.

'Q. What happened to you? A. When I fell I hit the corner of that slop sink and cut my head open.'

Plaintiff received a small cut on the left side of his face which quickly healed. He doctored the cut himself. The blood washed out of his clothing. He lost no time from work and sustained no other damage or expense as a result of his injury.

Defendant contends a new trial should be granted under SDC 33.1605(2) because of misconduct of the jury in rendering a quotient verdict. Supporting this contention is the affidavit of the juror, Lawrence C. Clark. According to Clark 'several ballots were taken on the question of punitive damages on which there was a wide divergence in figures. That thereupon it was agreed that each should put down the amount to which he or she considered the plaintiff entitled. That the twelve sums were then added together and divided by 12, which result was decided by the Jury as the amount of such damages; and that it was understood and agreed by each Juror before the said amounts were...