Willet v. Johnson

• Decision Date: 03 March 1904
• Citation: 13 Okla. 563,1904 OK 12,76 P. 174
• Parties: GEORGE R. WILLET v. LYDIA JOHNSON.
• Court: Oklahoma Supreme Court

1904 OK 12

76 P. 174

13 Okla. 563

GEORGE R. WILLET v. LYDIA JOHNSON.

Supreme Court of Oklahoma

Decided: March 3, 1904

Syllabus

¶0 1. DEMURRER PROPERLY OVERRULED, WHEN. In an action for damages for an assault and battery, where the plaintiff and one other witness testified that the assault and battery was committed, a demurrer to the evidence on the ground that there was no cause of action proved was properly overruled, inasmuch as plaintiff would be entitled to nominal damages even though no actual injury had been shown.

2. AMENDMENT TO PETITION--No Error in Allowing, When. To allow an amendment to a petition at the conclusion of plaintiff's evidence is a matter largely within the discretion of the trial court. Before it will be held error to allow such an amendment, it must appear that the court abused its discretion.

3. JURY MAY CONSIDER FINANCIAL CONDITION OF PARTIES, WHEN. In an action to recover damages for an assault and battery, it is not error to allow the defendant to be called and examined by the plaintiff as to his financial condition, as, after actual injury is shown, the jury, in assessing exemplary damages, may take into consideration the financial condition of the defendant.

4. COURT WILL NOT CONSIDER ASSIGNMENTS OF ERROR, WHEN. Where assignments of error are so general as not to point out the real error complained of, this court will not consider them, nor will it examine the record with regard thereto.

5. EXPENSE OF MEDICAL SERVICES--Proper to Prove, When. A married woman, under certain circumstances, may become liable for medical services; and, in cases in which she is liable, it is not error, on the trial of a case for damages for assault and battery, to allow testimony to be introduced showing the expenses incurred for such services rendered.

6. ASSAULT AND BATTERY--What Plaintiff Must Show. On the trial of a case for damages for injuries sustained as the result of an assault and battery, the plaintiff must show that the injuries complained of are the result of the wrongful act complained of.

7. EVIDENCE OF INJURY NO EVIDENCE OF CAUSE--Failure of Proof, When. In the trial of an action for damages for an assault and battery, evidence which shows the plaintiff was suffering from inflammation of the uterus, ovaries and bladder is not sufficient to prove the cause of the injury. And, in such case, where the evidence fails to show that the injuries are the immediate and proximate result of the assault and battery, Held, that the evidence fails to prove a cause of action.

8. QUESTIONS OF SCIENCE--To be Determined, How. Where the injuries are of such a character as to require skilled and professional men to determine the cause and extent thereof, the question is one of science, and must necessarily be determined by the testimony of skilled professional persons, and cannot be determined from the testimony of unskilled witnesses having no scientific knowledge of such injuries.

Error from the District Court of Kay County; before Bayard T. Hainer, Trial Judge.

Gurley & Turner, Jackson & Noble and H. B. Martin, for plaintiff in error.

A. F. Moss, for defendant in error.

PANCOAST, J.:

¶1 This was an action brought by the defendant in error against the plaintiff in error in the district court of Kay county, to recover the sum of five thousand dollars for personal injuries alleged to have been sustained through an assault and battery committed by the plaintiff in error upon the defendant in error, on the 14th day of April, 1902. The injuries alleged to be the result of the assault and battery are: inflammation of the uterus, fallopian tubes, bladder and its appendages, for which injuries plaintiff alleges:

"That she has suffered great, intense and continuous pain and mental anguish, that her health has been permanently impaired, and that she has been damaged by reason of the different wrongful and malicious acts of the defendant, by reason of the bodily afflictions described, and by reason of the great physical pain and mental anguish, in the sum of five thousand dollars."

¶2 The petition alleges, among other things, that the plaintiff, on or about the 2nd day of March, 1902, sustained an accidental miscarriage, and for a period of above five weeks immediately following, she was under the constant care and treatment of the family physician, and received continuous treatment for the effects of the miscarriage.

¶3 The petition also states that the plaintiff has expended for medicines and medical treatment the sum of sixty dollars. The prayer of the petition is for five thousand, sixty dollars, without specification as to what said sum or any part of it is for.

¶4 At about the close of plaintiff's evidence, she asked leave to amend her petition, "So as to make it read twenty-five hundred dollars punitive damages and twenty-five hundred dollars actual damages," which amendment was allowed over the objections of the defendant, but the amendment was not made.

¶5 The case was tried to a jury, and a verdict returned in favor of the plaintiff for the sum of five hundred dollars, upon which verdict, after motion for new trial had been filed and overruled, judgment was rendered for the amount named in the verdict, and for costs. The defendant below, as plaintiff in error, brings the case here for review.

¶6 Numerous assignments of error are contained in the petition in error and are argued in the brief. We deem it unnecessary, however, to discuss all of them, and we therefore notice only those which we deem sufficiently material and controlling in the case; nor will we follow the specifications of error in the order they are argued in the brief.

¶7 The record shows that at the time of the alleged assault, the husband of the plaintiff below was working for the defendant as a farm laborer; the husband, with the plaintiff and her daughter, occupying a building belonging to the defendant, on the defendant's farm, the use of which was allowed the husband as part compensation for his labor.

¶8 Defendant having become dissatisfied with the plaintiff's husband, sought to end their business relations, and employed another man whom he intended to permit to occupy the house, intending to have the plaintiff and her husband remove therefrom. When he appeared upon the land at the time stated, a controversy arose between the parties, and the defendant, walking toward the house to a point near the steps leading into the door, attempted to go into the house, when the plaintiff placed herself in a position at the door which prevented him from entering, at the same time telling the defendant that he could not go in. The plaintiff testified, and was supported in the statement by her daughter, that when she refused to allow the defendant to enter the house, he caught her by the wrists and jerked her down from the door to the ground, the distance being two steps of about eight inches each. This act constituted the assault and battery named in the petition, and this is the act which it is claimed caused the injuries sustained.

¶9 The defendant denied absolutely making the assault, and claimed that the plaintiff, in order to prevent him from going into the house, caught him by the lapel of his coat, and that he removed her hands from his person without any attempt at violence of any kind whatever. In this he is supported by witnesses in such number that from an examination of the record, it does not seem that the plaintiff furnished a preponderance of the evidence in support of her claim. However, the jury found otherwise, and the court sustained the verdict, so that, following the numerous decisions of this court, we will not disturb the judgment upon this ground.

¶10 Following this rule, it must be held that the plaintiff below was entitled to a judgment for at least nominal damages; and, as she was entitled to a judgment for nominal damages, if nothing more, the demurrer to the evidence interposed by the defendant was properly overruled.

¶11 Nor was there any error committed by the court in allowing the plaintiff to amend her petition so as to ask for exemplary damages. Courts should be reasonably liberal in allowing amendments of this character under the circumstances shown in this case, for if the jury found that the assault and battery was actually committed as testified to by the plaintiff and her daughter, and the plaintiff was entitled to anything as compensatory damages, then the jury might very properly assess exemplary damages as well.

¶12 Nor was there any error committed in allowing the defendant to be examined by the plaintiff to show his financial condition, this class of evidence being competent, as, after actual injury was shown, the jury, in assessing exemplary damages, may very properly take into consideration the financial condition of the defendant. (Courvoisier v. Raymond, [Col.] 47 P. 284; Sutherland on Damages, vol. 1, p. 745.)

¶13 This disposes of specifications of error contained in the brief, numbered two, four and five. Specifications one, six, seven and eight are too general in their character, and do not point out to the court the real error complained of. For instance, specification number one says that the court erred in admitting incompetent and prejudicial testimony, but what particular testimony was admitted is not specified.

¶14 It is claimed that the court committed error in permitting the defendant in error to introduce testimony of expenses incurred for medical services rendered. We cannot agree with counsel that the plaintiff could in no event be liable for medical services, for the reason that she is a married woman, and it is the duty of the husband to procure medical services for his wife. While the husband may be liable, yet under our statutes relating to married women, we think, under...