Williams v. Campbell

• Decision Date: 19 July 1913
• Docket Number: 747
• Citation: 133 P. 1071,22 Wyo. 1
• Parties: WILLIAMS v. CAMPBELL
• Court: Wyoming Supreme Court

133 P. 1071

22 Wyo. 1

WILLIAMS v. CAMPBELL

No. 747

Supreme Court of Wyoming

July 19, 1913

ERROR to the District Court, Sheridan County; HON. CARROLL H PARMELEE, Judge.

The material facts are stated in the opinion.

Affirmed.

Camplin & O'Marr, for plaintiff in error.

The overwhelming preponderance of the evidence was against the plaintiff below, entitling the defendant to a new trial. If the plaintiff was entitled to any damages as a result of the altercation, there was no reason for a recovery of more than a nominal sum. The assault was not an aggravated one, and hence it was improper to allow exemplary damages. There is no evidence upon which to base the amount awarded as actual damages. It is submitted that there is nothing in the evidence to show malice on the part of the defendant, or that what he did was oppressive in character. The plaintiff insisted that because he owned the larger interest in the horse over which the difficulty occurred he would use it as he wished. While that may not have furnished a sufficient justification for an assault upon him by the defendant, yet it presented a sufficient excuse or provocation to be considered in mitigation, and to prevent the recovery of punitive damages. (Ward v. Blackwood, 48 Am. Rep 41.) We concede that the burden of proof was on defendant to maintain his second defense, but it was necessary for the plaintiff to prove the allegations of his petition by a preponderance of the testimony, for the answer contained a general denial, and a defendant may plead as many defenses as he has. (Comp. Stat. 1910, Sec. 4390.)

Instructions 4, 5 and 6 served to mislead the jury and were very prejudicial, because they caused the returning of the verdict that was returned. The jury were led to believe from said instructions that by finding against the defendant upon his second defense no further consideration should be given to the testimony of the defendant or of others present at the time of the alleged assault. The plaintiff was put upon his proof of every material allegation of the petition. (Comp Stat. 1910, Sec. 4390; Cogdell v. Yett, 1 Coldw. (Tenn.) 230; Rhine v. Montgomery, 50 Mo. 566; Lansing v. Parker, 9 How. Prac. (N. Y.) 288.)

Metz & Sackett, for defendant in error.

The circumstances of the assault and abuse of the plaintiff by the defendant were very aggravating. The jury evidently believed the story told by the plaintiff, Campbell, and disbelieved the version of the affair testified to by Williams, except where it was corroborated by other credible evidence or where it was against the interest of the defendant, Williams. Although there had been no battery, but simply an assault and intimidation, the case would have warranted the finding of $ 100 as actual damages. (Davis v. Tacoma R. & P. Co., 35 Wash. 203, 77 P. 209, 66 L. R. A. 803; Adams v. Rivers, 11 Barb. 390; Schulz v. Frankfort Marine A. & P. G. Co., 139 N.W. 386.) It is apparent that the amount allowed for exemplary damages is not excessive.

BEARD, JUSTICE. SCOTT, C. J., and POTTER, J., concur.

OPINION

BEARD, JUSTICE.

Action by defendant in error, David A. Campbell, against plaintiff in error, W. J. Williams, for damages for an alleged assault and battery. Verdict and judgment for plaintiff, and defendant brings error.

The plaintiff alleged in his petition that about January 28, 1912, the defendant with great force and violence made an assault on plaintiff and beat, bruised and wounded him and thereby caused him to become sick and to suffer great pain, to his damage in the sum of $ 1,000. He further alleged that said assault and beating were done by defendant with great force and violence and were maliciously and wilfully done, and claimed $ 2,000 exemplary damages.

The defendant's answer contained, first, a general denial of the allegations of the petition; and, second, alleged that at the time and place stated in the petition plaintiff made an assault on defendant, and that in defending himself against said assault he necessarily struck plaintiff with his hand, doing plaintiff no unnecessary damage, and that said striking was done in the necessary defense of his person from said assault. The reply denied the allegations of the second defense except that defendant struck plaintiff with his hand.

It appears that, at the date stated, the plaintiff, Campbell was driving a six-horse team attached to two sleds, one of the horses of the team being a stallion of which plaintiff owned eight-ninths and defendant one-ninth. That defendant with his wife were driving a two-horse team attached to a sled or sleigh. The parties met and stopped, when defendant got out of his sled and went to the sled in which plaintiff was sitting and objected to plaintiff's using the stallion for freighting, which use of said horse was the cause of the difficulty. The evidence on part of plaintiff tended to prove that defendant, without other provocation, then called plaintiff vile names and assaulted him, striking him with his fist several times on the head and face, inflicting several wounds and bruises and otherwise injuring his side and neck from which he suffered considerable pain, made him sore and lame, and that his side troubled him for a week or ten days and his neck for about five weeks, so that for a week or more he "wasn't able to do anything hardly...