Altman v. Francis

         Jan. 20, 1970.

         Editorial Note:

         This case has been marked 'not for publication' by the court.

         McMartin & MacFarlane, Pueblo, for plaintiff in error.

         Sam T. Taylor, Walsenburg, for defendant in error.

         DUFFORD, Judge.

         This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.

         The questions here concern the correctness of damages awarded for an assault and battery. In the trial court the defendant in error, Ronald Francis, was the plaintiff and shall be referred to herein as 'plaintiff'. The plaintiff in error, Reginald Altman, was the defendant below and shall be referred to as 'defendant' in this opinion.

         The appeal is brought by the defendant charging, first, that the actual damages awarded by the jury in the trial court were excessive. Defendant also contends that since the actual damages were excessive the exemplary damages could not bear any reasonable relation to the actual damages and would, therefore, as a matter of law have to be reduced. Defendant requests us to order a new trial on all matters.

         The record in this matter reveals that, although there is conflicting evidence as to the exact circumstances which preceded the assaults by defendant upon plaintiff, there is no question that defendant physicially assaulted plaintiff on three separate instances. The first assault occurred in or near the doorway to plaintiff's home; this was followed shortly in time by a second attack occurring in the front yard of plaintiff's home; and a third assault occurred outside the yard of plaintiff's home. The statements of the plaintiff and the defendant are also divergent as to the severity of the assaults. The defendant testified that he merely struck the plaintiff with the back of his hand. The plaintiff's testimony was to the effect that he was not only beaten severely by the hands and fists of the defendant, but that also the defendant kicked and stomped on him with cowboy boots. Both parties testified that the plaintiff repeatedly asked the defendant to stop the assaults. The defendant's testimony was also to the effect that it was his intent prior to the assault to 'whip him just like he belonged to me.' Defendant also stated that he wished he 'had a wet rope that I could have took to that man that he needed to be used on him since he was about ten years old.' The testimony of the plaintiff's injuries given by the physician who treated plaintiff immediately after the assaults was not challenged by defendant. That witness stated that the plaintiff was bleeding profusely from the nose and mouth; was covered with contusions and abrasions over the entirety of his body, and was also experiencing severe pain in the abdominal, groin and chest areas.

         Following these assaults plaintiff was taken to a hospital by members of his family and remained hospitalized for a period of six days. Although the total extent of the physical injury inflicted on plaintiff as a result of the assaults is not clearly determinable from the record, it appears to be uncontroverted that plaintiff did suffer numerous contusions and abrasions, and competent medical testimony also established that plaintiff suffered from a paralytic ileus, which was attributed to the assaults. Plaintiff also claimed that he suffered from a broken rib, and he and his wife testified concerning nervous disorders and impotency following the assaults; however, medical testimony did not fully confirm that these conditions existed or that if they existed they were necessarily a product of the assaults.

         The matter was tried to a jury, and the jury found for the plaintiff Francis and against the defendant Altman and assessed the actual damages of the plaintiff at $3,315.45 and his exemplary damages in the amount of $2,000.00. The defendant moved for a new trial and for a stay of execution on the grounds that the damages awarded were excessive, and also on the ground that a motion for change of venue previously made by defendant should have been granted. The motion for new trial and stay of execution was denied, and this appeal was brought solely on the question as to whether the damages awarded were excessive.

         1. AS TO ACTUAL DAMAGES

          Defendant first asserts as error that the actual damages awarded were excessive under the evidence presented at trial. These damages totaled $3,315.45. Of such amount $315.45 is attributed to hospital and medical expenses, and this amount is not contested. The remaining $3,000.00 defendant contends to be excessive, principally because there was no evidence as to loss of earnings and no Medical evidence of Permanent injury. Such contentions are not supported by the record. There does appear testimony from the physician who treated the plaintiff after the assaults as to the severity and scope of plaintiff's injuries. Such witness specifically described the paralysis of the bowels from which the plaintiff suffered and stated that such condition was the result of 'severe injury' suffered during the assaults. We find no contradiction to the testimony that plaintiff was unemployed for approximately three months following the assaults, and it was established at trial that prior to the assaults the plaintiff earned approximately $400.00 per month while employed by the defendant. Further, the defendant's own medical witness who examined the plaintiff some months after the assaults testified that a low back pain from which plaintiff stated he was suffering could have been caused or aggravated by the assaults. Such medical witness was also unable either to confirm or refute by medical findings the testimony concerning the impotency of the plaintiff. Considering these facts and the fact that the jury was permitted to award actual damages for the pain and anguish associated with the plaintiff's injuries, we cannot find that the actual damages awarded by the jury were excessive and not supported by the evidence. Celebrities Bowling, Inc. v. Shattuck, 160 Colo. 102, 414 P.2d 657.

         The cases of City of Pueblo v. Ratliff, 131 Colo. 381, 281 P.2d 1021, and Ark Valley Alfalfa Mills, Inc. v. Day, 128 Colo. 436, 236 P.2d 815, relied on by defendant are not persuasive here. In those cases there was a complete void of expert medical testimony on the injury questions under consideration by the jury.

         2. AS TO EXEMPLARY DAMAGES

         Plaintiff secondly asserts that, since the actual damages which were granted exceeded reasonable compensation for the injuries proven, it necessarily follows that the exemplary damages could not have been based on any reasonable relationship to the actual damages and must be reduced. Even if we agreed with such assertion, our finding that the actual damages awarded were reasonable and were supported by the evidence precludes any modification here of the exemplary damage award.

          Additionally, our statute, Sec. 41--2--2, C.R.S.1963, authorizing exemplary damages requires only that they be reasonable. Considering the degree of malice which the defendant, by his own statements, appears to have felt before and during the assaults; the severity of the result of assaults as testified to by the treating physician; and the refusal of the defendant to yield to the plaintiff's pleas that the assaults be stopped, we feel that the exemplary damages award is relatable to the defendant's malice and does not exceed our statutory limitation of reasonableness.

         The judgment is affirmed.

         DWYER and ENOCH, JJ., concur.