Worthington v. Shewcov
| Decision Date | 03 June 1959 |
| Docket Number | 9873,Nos. 9872,s. 9872 |
| Citation | 152 A.2d 91,89 R.I. 169 |
| Parties | Olive A. WORTHINGTON v. Michelina SHEWCOV. Olive A. WORTHINGTON v. Nicholas SHEWCOV. Ex. |
| Court | Rhode Island Supreme Court |
Isidore Kirshenbaum, Alfred Factor, Providence, for plaintiff.
James J. McAleer, Joseph V. Cavanagh, Providence, for defendants.
These are two actions of trespass for assault and battery on the person of the plaintiff's intestate. Prior to the trial the plaintiff moved that she be substituted as party plaintiff in her capacity as administratrix of the estate of her late husband Part N. Worthington. The cases were tried together before a justice of the superior court sitting with a jury and resulted in a verdict for the defendant in each case. Each case is before us on the plaintiff's bill of exceptions containing nine exceptions, only one of which has been pressed, namely, the seventh, that a portion of the charge was prejudicial error in that it invaded the province of the jury.
By agreement of counsel the instant cases were argued before us together with a companion case, Olive A. Worthington v. Michelina Shewcov, Ex. No. 9871. The latter case involves an action of trespass brought by the plaintiff in her own behalf and for reasons of clarity we have this day filed a separate opinion therein. Worthington v. Shewcov, R.I., 152 A.2d 96.
The pertinent testimony discloses that on January 20, 1949 defendants Nicholas and Michelina Shewcov, husband and wife, rented to Park N. and Olive A. Worthington, husband and wife, and apartment on the third floor of their premises located at 284 Friendship street in the city of Providence. The defendants occupied the second floor apartment beneath that rented by the Worthingtons.
The relationship of landlord and tenant was something less than harmonious from the first day that the Worthingtons became tenants. The plaintiff testified that she and her husband wre not permitted to use the front door, that water was not always available, and that other utilities such as heat and light were inadequate. This testimony was flatly contradicted by defendants. They testified that plaintiff walked noisily in her own apartment and was continually slamming doors, which complaints plaintiff testified were untrue.
On May 16, 1949 an altercation occurred which led to the present litigation. The testimony of plaintiff and defendants as to what happened is in sharp conflict. The plaintiff testified that on the afternoon of that day she started down the front stairs from the third floor when defendant Nicholas Shewcov started up the stairs from the second floor, blocked her passage and told her that she could not use the front door; that defendant's wife Michelina Shewcov ran up the stairs and punched her three times in the stomach; that she, plaintiff, called to her husband for assistance and defendants withdrew to their own apartment on the second floor.
The plaintiff further testified that when her husband approached the open door of defendants' apartment he was dragged in by both defendants and while each held an arm 'they began beating him over his head, his chest, his back, and his face, and punching him all they could with their fists.'
The defendants' version is considerably different. Nicholas Shewcov testified that he and his wife were sitting in the living room of their apartment with the door to the landing open when plaintiff passed by on her way downstairs to the front door; that he asked her not to slam the door on her way out, whereupon she called to her husband saying 'landlord bothered me'; and that her husband came downstairs, entered the apartment of defendants, grabbed defendant Nicholas by the shirt and raised his hand to strike him. Nicholas further testified: I raise my hand and slap him back. Then I jerk and my shirt torn. I had these scratches here on my neck.' The testimony of defendant Michelina is in substance a corroboration of that given by her husband.
Eleanor Murphy, assistant record librarian at the Rhode Island Hospital, testifying from microfilm copies of the hospital record, stated that at 3:08 p. m. on May 16, 1949 Park Worthington was brought to the hospital by an accident ambulance and was treated for 'Fractured nose and epistaxis, fine squeaks in left lung base.' He was released two hours later and again treated on the following day. No testimony was offered to prove or deny that the fracture resulted from the skirmish between Park Worthington and the Shewcovs.
Lieutenant Leo F. Maher of the Providence police department testified from a record made by him at the time that on May 16, 1949 Park Worthington went to the police station and complained that about 2:30 p. m. on that day he had been assaulted by both defendants, more or less in the manner described by plaintiff. It appears from the lieutenant's testimony that both the Worthingtons and the Shewcovs were questioned by the police and each couple accused the other. The police record shows that on the day in question Nicholas stated that he met plaintiff on the landing but otherwise the account of the incident he gave to the police was substantially the same as his testimony at the trial. The police apparently took no action on the complaint.
The plaintiff alleges nine grounds of error in each of her bills of exceptions but presses only one exception, namely, the seventh: 'To that portion of the charge of the Trial Justice in which the Trial Justice stated, 'I have seen no evidence that would convince this Court that I should charge you on punitive damages, because I see no act of violence and wanton deliberateness that would warrant that, so that the only damages you can assess are compensatory damages and not punitive damages, as far as this Court is concerned.''
The trial justice charged the jury in part as follows: 'If by a fair preponderance of the testimony you find that either one or both of these defendants unlawfully laid a hand on the plaintiffs, and you find that by a fair preponderance of the testimony, then your verdict must be for the plaintiff.' Discussing the plea of self-defense the court stated:
The trial justice continued:
After stating the foregoing on the nature of the case as it related to liability the trial justice made the following observation on the question of damages:
It is well settled in this jurisdiction that exemplary or punitive damages may be awarded in the discretion of the jury for torts involving malice, wantonness, or willfulness. Hargraves v. Ballou, 47 R.I. 186, 131 A. 643. And in Kenyon v. Cameron, 17 R.I. 122, at page 125, 20 A. 233, at page 234...
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