Wilson v. Hall

• Decision Date: 13 April 1926
• Docket Number: 1250
• Parties: WILSON v. HALL [*]
• Court: Wyoming Supreme Court

244 P. 1002

34 Wyo. 465

WILSON v. HALL ^[*]

No. 1250

Supreme Court of Wyoming

April 13, 1926

APPEAL from District Court, Johnson County; HARRY P. ILSLEY, Judge.

Action by Ben Wilson against Roy B. Hall, for damages for injuries resulting from an assault and battery. There was judgment for plaintiff and defendant appeals.

Affirmed.

R. E McNally, and F. M. Ward, for appellant.

The judgment was for $ 500.00 as actual damages and $ 1,000.00 as exemplary damages; recovery for exemplary damages was not allowable under the pleadings nor sustained by the evidence; Selland v. Nelson, (N. D.) 132 N.W. 220; respondent was intoxicated and considered a dangerous man; at the time of the trouble, he was in an angry mood; he was a sheep herder and accustomed to use dangerous weapons respondent's appearance at the trial was not entirely due to the altercation, but to protracted intoxication, the kick of a horse and injuries from barb wire; this was shown by the evidence. As to the insufficiency of the petition see Hirabelli v. Daniels, (Utah.) 121 P. 966; Rochester v. Co., (Kan.) 123 P. 729; Iaeger v. Metcalf, (Ariz.) 94 P. 1094; Cosgriff v. Miller (Wyo.) 68 P. 206; an act will not be deemed malicious, and so warranting punitive damages, merely because it is wrongful; 17 C. J. 984; our constitution prohibits excessive fines and unusual punishment; it is proper to consider the pecuniary circumstances of defendant where exemplary damages are claimed; Cosgriff v. Miller, supra; the judgment for compensatory damages is excessive and exemplary damages were unwarranted.

Alvin T. Clark and Burt Griggs, for respondent.

Respondent, as appears from the evidence, was 63 years of age and had been a sheep herder 36 years; he was not a dangerous man and had been employed by appellant for several years; there was no provocation for the assault which rendered him unconscious; his face was bruised and his nose broken, one rib was broken and two others cracked; he was suffering from an enlarged spleen; the suggestion of his injuries from barb wire, or falling out of a wagon, was unsupported by the evidence. It was unnecessary to allege malice; the authorities cited by appellant as to insufficiency of the petition, are not convincing; no exceptions to the petition were taken, prior to trial; a recovery of the exemplary damages was justified; Williams v. Campbell, 22 Wyo. 1; Cosgriff v. Miller, 68 P. 206; it is not necessary to plead exemplary damages separately; Stark v. Epler, (Ore.) 117 P. 276; Flynn v. Hollenback (Kan.) 173 P. 925; Elfers v. Wooley, 116 N.Y. 294; Sloan v. Speaker, 63 Mo.App. 321; Lake Shore Ry. Co. v. Prentice, 147 U.S. 107; the rule as to excessive damages is stated in 17 C. J. 1090, and sustains the judgment here.

BLUME, Justice. POTTER, C. J. and KIMBALL, J., concur.

OPINION

BLUME, Justice.

Wilson, the plaintiff, sued the defendant Hall for damages for an assault and battery. The case was tried to the court without the intervention of a jury. Judgment was rendered in favor of plaintiff for $ 500 actual damages and $ 1,000 punitive damages. From that judgment the defendant has appealed. The parties will be named herein in the same manner as in the court below.

1. The defendant claims that the plaintiff's petition contains no allegations which would authorize the recovery of punitive or exemplary damages. There is some confusion in the authorities as to what, if any, allegations are necessary in a petition in an action for the commission of a tort, to permit the recovery of such damages. In order that any such damages may be recovered at all, the evidence, in any event, must show that the tort was committed maliciously, willfully or by some form of wantonness. The commission of a tort in a wanton manner is clearly a matter of aggravation. That is not so clear in all forms of malice or willfulness, but inasmuch as these are generally shown by the manner in which the tort is committed, they seem to be also treated as matters of aggravation, or at least in the nature thereof. Now it seems to have been the rule at common law that matters of aggravation, including motive and intent, unless of the gist of the action, were not necessary to be pleaded. Sutherland on Damages, 4th ed., sec. 422. It is said in the early Texas case of McGehee v. Shafer, 9 Tex. 20, 22:

"Matters which go merely in aggravation or in extenuation, and whose effect is but to enhance or diminish the damages, need not be pleaded. They are necessarily incidental to or intimately connected with, and inseparable from, the facts which constitute the cause of action or ground of defense, which they merely serve to qualify or illustrate, and, in connection with which they are always admissible in evidence as a part of the res gestae, without being specially pleaded."

And in the case of Schofield v. Ferrers, 46 Pa. 438, it was said that if outrage and oppression attend the commission of a tort, they belong to the wrongful act itself, and that, accordingly, the circumstances surrounding the commission of a tort need not be pleaded. In the case of Pierce v. Carpenter, 65 Mo.App. 191, an assault and battery case, it was said:

"It is an established rule of pleading at common law, and one which has received the sanction of courts of this state, that matters of aggravation do not constitute a part of the cause of action. * * * Under this rule it has been held, in actions like we have here, that such matters need not be pleaded but may be given in evidence, where it is averred that the assault was unlawfully made."

To the same effect are Lyddon v. Dose, 81 Mo.App. 64; Howard v. Lillard, 17 Mo.App. 228; Sampson v. Henry, 11 Pick. 379; Brewer v. Dew, 11 Mees & Welsb. 625, 152 Eng. Rep. 955. In the case of Rude v. Fakes, 143 Ill.App. 456, 459, the court said:

"Where willfulness or wantonness is not the substantive cause of action, it is not necessary to allege that the act was willful or wanton in order to recover punitive or exemplary damages."

In the case of Wilkinson v. Drew, 75 Me. 360, the suit was for negligence. It was contended, as here, that the petition, in order to warrant the recovery of punitive damages, should state that the wrong complained of was willfully or wantonly done; that otherwise the very gravamen of plaintiff's real claim would remain concealed until the moment of trial. But the court said:

"The objection is taken that there can be no recovery for punitive damages, because of the omission of certain adjectives intensifying the negligence, by describing it as gross, and of certain adverbs indicating wicked intent, as maliciously, wantonly etc. * * * The character of the negligence and how far it implies a disregard of the rights of others, or a criminal neglect on the part of a defendant, is to be determined by the jury, under proper instructions. The damages are to be determined by the act done or omitted to be done, and the circumstances attending the act or the omission to act, and not upon whether certain vituperative adverbs are or are not inserted in the declaration. To authorize damages it is sufficient if the plaintiff in his declaration alleges negligence, but he must prove that it is of such character as to authorize the jury to find that the act or omission of the defendant was willful and wanton."

Greenleaf in his work on evidence, volume 2, section 89, summarizes the law on this subject, as he conceived it to be, as follows:

"The manner, motives, place, and circumstances of the assault, however, though tending to increase the damages, need not be specially stated, but may be shown in evidence. * * * Nor are the jury confined to the mere corporal injury which the plaintiff has sustained, but they are at liberty to consider the malice of the defendant, the insulting character of his conduct, the rank in life of the several parties, and all the circumstances of the outrage, and thereupon to award such exemplary damages as the circumstances may in their judgment require."

Such then appears to have been the rule at common law; and we should take this fact into consideration in determining as to what the rule should be in this state. Under the impulse of the system of code pleading, the rule above set forth appears to have been modified, and, in a number of states at least it is held that matters of aggravation should be pleaded and that in an action like that at bar the petition should allege that the tort was committed maliciously, willfully or wantonly, or the circumstances under which the tort was committed, from which malice, willfulness or wantonness may be inferred, should be alleged, in order to authorize the assessment of punitive damages. San Antonio etc. R. Co. v. Kniffen, 4 Tex. Civ. App. 484, 23 S.W. 457; Stark v. Epler, 59 Ore. 262, 117 P. 276; Railroad v. Ray, 101 Tenn. 1; Iaegar v. Metcalf, 11 Ariz. 283, 94 P. 1094; Selland v. Nelson, 22 N.D. 14, 132 N.W. 220; 5 C. J. 654, 17 C. J. 105, 106; Sutherland on Damages, supra, sec. 423 and note to sec. 422. It is not, as indicated, necessary, under the rule of these authorities, to expressly aver that the tort was committed maliciously, willfully or wantonly; the pleader may adopt the alternative and state facts and circumstances accompanying the commission of the tort, from which malice, willfulness or wantonness may be inferred. Assuming the rule of these cases to be the better rule, since it is the main purpose of pleading to inform the opposite party of the actual claim that is made, we shall proceed to investigate as to whether or not the petition in the case at bar comes within its spirit. Plaintiff alleges, among other things, that the defendant, on or about October 11, 1922, in Johnson county, Wyoming, violently assaulted him, and with great force...