Vaughn v. Mesch
| Decision Date | 18 January 1939 |
| Docket Number | 7821. |
| Citation | 87 P.2d 177,107 Mont. 498 |
| Parties | VAUGHN v. MESCH. |
| Court | Montana Supreme Court |
Rehearing Denied Feb. 23, 1939.
Appeal from Fifth Judicial District Court, Madison County; H. G Rodgers, Judge.
Action by Alice Vaughn against Marie Mesch, for damages for assault and battery. From a judgment on a verdict for plaintiff defendant appeals.
Reversed and remanded with directions.
Frank E. Blair, of Virginia City, for appellant.
John Collins, of Dillon, for respondent.
This is an action for damages for assault and battery. The jury returned a verdict for $130 actual damages and $1,870 punitive damages. Defendant's motion for new trial was denied and she appealed from the judgment entered on the verdict.
The evidence, viewed in the light most favorable to plaintiff discloses that on June 1, 1936, plaintiff and her husband occupied certain property belonging to defendant as a residence, in which plaintiff's husband also conducted a barber shop. Defendant on August 23, 1935, served notice upon plaintiff's husband to vacate the premises which at that time were held by him under lease. Plaintiff and her husband having refused to vacate the premises, an action for unlawful detainer was instituted by defendant against plaintiff's husband. That action was pending and undetermined on June 1, 1936.
Prior to June 1 defendant had rented to Charles Bell a cabin located near the house occupied by plaintiff and her husband; there was a toilet back of the cabin and a gate and driveway leading to the rear of the premises; the toilet and the gate and driveway were appurtenances to the cabin as well as to the buildings occupied by plaintiff and her husband. The entire premises were surrounded by a fence of which the gate constituted a part. Plaintiff and her husband claimed no right in the cabin; plaintiff's husband put a padlock on the toilet and on the gate; Bell was thus prevented from driving his truck in the yard and complained to defendant. On June 1, 1936, defendant sought assistance from town officers to remove the padlock; failing in this, she and her brother, William Steiner, proceeded to do so by the use of a hammer and pliers; they removed the lock on the toilet and defendant started to remove the lock on the gate when her efforts were intercepted by plaintiff's husband. A struggle ensued; it gained momentum as it progressed; at first it was waged between plaintiff's husband and defendant. Plaintiff soon joined her husband, and defendant obtained assistance from her brother, William Steiner, then seventy years of age, who approached with an axe in his hand; a Mr. Gammel took the axe from Steiner. Eventually plaintiff's husband and Steiner became the principal participants in the encounter; bystanders intervened sufficiently to obstruct their efforts in part. A lull in activities found plaintiff's husband retiring from the conflict to take a seat on the back steps of the house occupied by himself and his wife as a residence. At this juncture Steiner shook his fist in the face of plaintiff and, according to some evidence, called her an opprobrious name and she retorted by slapping him in the face. Defendant then struck plaintiff in the head with a hammer causing the injuries complained of. Steiner withdrew and within a few minutes thereafter died. Plaintiff was carried to her home where medical care was administered.
The complaint described the injuries as follows:
"2. That the plaintiff was thereby rendered unconscious, her skull broken and crushed, her brain and nerves injured, her eyesight and hearing impaired, and other injuries about the head and body were inflicted upon her.
3. That with the purpose of relieving the pain and suffering so caused, and of restoring her to a sound condition, the plaintiff has received competent medical and surgical treatment. That all of the services so received by plaintiff were necessary, and that such services will be required for an indefinite time in the future; by reason whereof the plaintiff has incurred and will incur a necessary and reasonable expense in the sum of $200.
4. That by reason of the injuries so inflicted upon her, the plaintiff has been, and will permanently remain disabled from performing effectively her ordinary duties, which are that of housewife; and ever since receiving the same, and by reason thereof, she has suffered great physical and mental pain and nervous shock; and according to her best knowledge, information and belief, such suffering will continue throughout the remainder of her life."
Defendant contends that paragraphs 3 and 4 of the complaint above quoted are in the nature of special allegations which limit the general allegations contained in paragraph 2, and that in consequence it was error to permit evidence in support of the allegations of paragraph 2, except such as fall within the allegations of paragraphs 3 and 4. She also contends that the court erred in refusing her offered instruction confining the jury in the assessment of actual damages to those flowing from injuries based upon paragraphs 3 and 4 of the complaint, in exclusion of those alleged in paragraph 2, and in giving an instruction permitting the jury to consider injuries proven under paragraph 2 of the complaint. These contentions cannot be sustained. Paragraphs 3 and 4 do not limit the general allegations of paragraph 2. They merely allege consequences flowing from the injuries alleged generally in paragraph 2. The court's rulings were correct and in harmony with the holding of this court in McCulloch v. Horton, 105 Mont. 531, 74 P.2d 1, 114 A.L.R. 823.
The next contention of defendant is that the court erred in excluding the judgment roll in the case of Mesch v. Vaughn, which was the action of unlawful detainer. Whether that judgment roll was admissible depends upon the issues made by the pleadings in this case and upon what was decided in that case. The complaint in this action alleges that defendant assaulted and struck plaintiff maliciously and without provocation. The answer contains an affirmative defense in which, after alleging ownership in defendant, it is alleged that plaintiff and her husband occupied the premises in question "without right, title or interest therein or thereto of whatsoever kind, nature or description and in absolute trespass of the plaintiff's said ownership, all over the protest and against the will and without the permission of the defendant herein."
The reply of plaintiff contains an affirmative plea that about the month of October, 1934, plaintiff's husband leased from defendant the premises in question for the full term of five years, and that at the time of the assault the lease was subsisting and in full force and effect. It is further alleged that in November, 1935, defendant commenced an action against plaintiff's husband to recover possession of the premises, and that in that action Vaughn made answer wherein he set forth the transactions between defendant and him in respect to his lease and right of possession, and that that action was still pending when the assault was committed.
Thus it will be seen that the pleadings in this case raised the issue as to whether plaintiff and her husband had any right of possession of the premises in question. Furthermore, Mr. Vaughn testified that he kept the rent paid during the time of the assault, and that the place of encounter was in his back yard which he had under lease. If defendant's version of the facts was true, then plaintiff and her husband were trespassers on the property. If plaintiff's version of the facts was correct, then plaintiff and her husband had a valid and subsisting lease on the premises. That this issue would influence jurors in the solution of the case cannot be questioned. Both parties thought that issue had a direct bearing upon the case, or else issues with respect thereto would not have been presented by the pleadings.
The judgment roll in the case of Mesch v. Vaughn discloses these facts: Plaintiff Mesch, who is defendant in this action, alleged in that action that defendant Vaughn had a month to month lease terminable at the will of plaintiff, defendant here; that the lease was terminated as of October 1, 1935, by giving notice to that effect in August, 1935; that complaint was filed in November, 1935, and sought restitution of the premises and treble damages. The answer in that action alleged that Vaughn had a lease for five full years, commencing October 15, 1934. The reply put in issue the allegations of the answer. The cause was tried to a jury, resulting in a verdict on April 7, 1937, for plaintiff, defendant here. The jury expressly found that the tenancy was from month to month. Judgment was entered on April 12, 1937, giving plaintiff, defendant here, immediate possession of the property, and awarding actual damages in the sum of $216, which was trebled. Thus it is seen that the terms of the lease were expressly adjudicated in that action. It was expressly determined that the lease was from month to month, with the right in Mrs. Mesch to terminate it at will. It determined the rights of the parties as of October 1, 1935, and adjudicated the fact that plaintiff's husband had no right or interest in the property and no right to remain in possession thereof after October 1, 1935. While Mrs. Vaughn was not a party to that action, her right to possession was predicated upon that of her husband, and if he had none, she likewise had none. She has no more right to damages here than her husband would have had, had the assault complained of been committed upon him. Franck v. Wiegert, 56 Mich. 472, 23 N.W. 172.
While the judgment above referred to was not entered until in April, 1937, it established the rights of the parties...
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State ex rel. Vaughn v. District Court of Fifth Judicial Dist. in and for Madison County
...May 28, 1940, taxing plaintiff's costs on retrial and striking defendant's bill of costs on appeal from a prior trial. In Vaughn v. Mesch, 107 Mont. 498, 87 P.2d 177, a in plaintiff's favor was reversed and the cause remanded to the respondent court for a new trial without an express award ......