DEEVY ET AL v. TASSI ET AL (1942)

The plaintiffs sued the defendants to recover damages for injuries suffered in an alleged unlawful assault. The defendants answered and the action was tried before the court sitting with a jury. The jury returned a verdict in favor of each plaintiff in the sum of $2500 as compensatory and $500 as exemplary damages. The defendants made a motion for a new trial. The motion was based on all of the statutory grounds. The motion was denied. The defendants appealed and have brought up typewritten transcripts.

As will hereinafter appear, it will be necessary to discuss the rights of individuals. But it is appropriate at this time to state the following facts. Dan Deevy, Jr., and Julia, his sister, are the owners of a dairy ranch located near Olema in Marin County. Some of the cows are owned by Dan Deevy, Jr. The defendant J. A. Tassi under the fictitious name of San Jose Cow Market is engaged in the business of buying and selling livestock. His principal place of business is at San Jose. On December 29, 1937, Dan Deevy, Sr., and Nellie Deevy, his wife, bought from San Jose Cow Market a herd of cows and in payment the two purchasers, and John Gomez and Loeda M. Gomez as endorsers, executed to the vendor a promissory note. The note was secured by a chattel mortgage. That mortgage contained a clause as follows: “It is also hereby agreed that if the mortgagor should fail to make any of the payments as in said promissory note provided, either of principal or of interest, or if there should be any default in the same or in the performance of any of the agreements or obligations herein contained, or in the payment of any liability or liabilities secured by this mortgage, or in event of an unreasonable depreciation in value of the mortgaged property or the mortgaged property from any other cause reasonably shall be deemed, by the mortgagee or his assigns, inadequate security for the indebtedness hereby secured, then and in either of the aforesaid events all of said note, both principal and interest, and all other amounts payable hereunder or secured hereby shall at the option of the mortgagee or his assigns become immediately due and payable, and the mortgagee or his assigns thereupon or at any time during such default shall have the right to take possession of any and/or all of the mortgaged property wherever the same may be, and for that purpose may enter into and upon any premises whatever or wherever the mortgaged property or any part thereof may be or may be supposed to be, either with or without process of law and using all necessary force so to do, and if found shall have the right to take possession of and/or remove the same.” On March 30, 1940, E. A. Tassi, the manager of the mortgagee, claiming the mortgagors were in default, consulted his attorney Jerome A. Duffy as to his rights in the premises. The latter advised him that he could retake the livestock under the provisions of the mortgage provided he could do so without committing a breach of the peace. On the date last mentioned E. A. Tassi, accompanied by Jack Bones, a deputy sheriff, went to the Deevy ranch, and the former asked for a return of the mortgaged livestock. The mortgagors refused to make a delivery. E. A. Tassi thereupon left the premises and went to Olema. He hired R. J. Kynock and two horses. He also hired Sam Howe. They returned to the Deevy ranch and started to herd and drive said livestock from the premises. They were immediately resisted. An affray ensued. Tassi and Howe attempted to herd and drive the cows away. Dan Deevy, Sr., Nellie Deevy, Julia Deevy, Dan Deevy, Jr., and one hired man opposed them. For injuries suffered in said affray the plaintiffs in this action sought to recover. Other facts will hereinafter be recited as it becomes necessary to present the particular point under discussion.

The defendants were justified in taking possession of the above–mentioned cattle without process of law only where such possession could be secured peaceably. Silverstin v. Kohler & Chase, 181 Cal. 51, 183 P. 451, 9 A.L.R. 1177. In Kirby v. Foster, 17 R.I. 437, 22 A. 1111, at page 1112, 14 L.R.A. 317, the Supreme Court of Rhode Island said: “In the most favorable view of the case for the defendants, the plaintiff, having obtained the money by no crime, misrepresentation, or violence, nor against the will of its owner, retained it wrongfully. In such cases the rule is clearly stated in Bliss v. Johnson, 73 N.Y. 529: ‘The general rule is that a right of property merely, not joined with the possession, will not justify the owner in committing an assault and battery upon the person in possession, for the purpose of regaining possession, although the possession is wrongfully withheld.’ See, also, Harris v. Marco, 16 S.C. 575; Barnes v. Martin, 15 Wis. 240 [82 Am.Dec. 670]; Andre v. Johnson, 6 Blackf. [Ind.] 375. * * * But, it is said, the plaintiff was about to carry away the money against the will of the owner. Undoubtedly this was so; but this is true in every case of wrongful conversion of property. If it be not taken against the will of the owner, it cannot be retaken by force, but only by the usual civil remedy.” However, they contend that E. A. Tassi attempted only a peaceful repossession, that defendants' actions were lawful and reasonable, and that plaintiffs were responsible for the resulting controversy. Each of those contentions was submitted to the jury and it returned a verdict against the defendants. On the issues so submitted the evidence was distinctly conflicting and the implied findings of the jury may not be disturbed on appeal.

In their complaint the plaintiffs did not allege that Dan Deevy, Sr., was afflicted with chronic miocarditis and that the affray aggravated said affliction. However, in making the opening statement, the plaintiffs' attorney stated to the jury that the plaintiffs would prove as an item of damage the aggravation of the heart condition of Dan Deevy, Sr. The defendants objected and now contend that such statements by plaintiffs' attorney constituted misconduct. Over the objection and exception of the defendants the plaintiffs introduced evidence on the subject last mentioned. The defendants earnestly contend that the ruling admitting such evidence was also prejudicial and erroneous. We think they are mistaken. Their contentions rest on the assumption that the condition of the heart and aggravation of that condition were matters of special damage which should have been alleged. The error in their position is the assumption that the plaintiffs should have alleged said matters as special damage. They were not bound to do so. Campbell v. Los Angeles Traction Co., 137 Cal. 565, 70 P. 624.

The defendants contend that the instructions of the trial court were conflicting, contradictory, and confusing. They quote several folios of instructions. They then make the claim that the instructions are irreconcilable. They do not show in what respect. It is no part of the duty of this court to endeavor to locate conflicts, if any. For that reason the point may not be sustained.

The defendants also contend that the evidence was insufficient to sustain the judgments and verdicts. It will suffice to state that the evidence contained conflicts; but, that there was evidence from which the jury was entitled to bring in verdicts in favor of the plaintiffs, is beyond controversy.

The defendants also contend that the verdict against J. A. Tassi is contrary to law. As an objection to an award for compensatory damages the contention may not be sustained. As E. A. Tassi was the manager of J. A. Tassi the latter was liable for the acts of the former which were within the scope of the former's employment. In so far as the contention is addressed to exemplary damages it must be sustained. Lightner Mining Co. v. Lane, 161 Cal. 689, 705, 120 P. 771, Ann.Cas.1913C, 1093. There is nothing in the record showing that J. A. Tassi specifically advised the acts of E. A. Tassi, that he knew anything whatever of his acts until after the incident had happened, or that he ratified such acts. Therefore he was not liable for exemplary damages. Loeb v. Kimmerle, 215 Cal. 143, 9 P.2d 199.

It is also claimed that the damages awarded are excessive. As to the defendant J. A. Tassi we have just shown that he was not liable for any part of the exemplary damages. As to the defendant E. A. Tassi, it may not be said that the sum of $500 awarded by the jury as exemplary damages in favor of each plaintiff was excessive. From what has been said hereinabove we think it is apparent that there were facts which, if the jury believed them, would give reasonable support to the verdict returned. However, as to compensatory damages the case presents a very different problem. The affray above mentioned occurred on Saturday, March 30, 1940. The next day, acting on the advice of counsel, all three plaintiffs consulted their family physician, Dr. C. C. Everman. Each one of the plaintiffs was examined regarding each and every injury he complained of. On the trial the doctor was produced as a witness on behalf of the plaintiffs. As summarized by the plaintiffs in their brief Dr. Everman testified: “All of the three people were complaining of injuries, and after refreshing his recollection from his office record, he testified that as to Julia Deevy she showed soreness and tenderness in the left cheekbone region with limitation of voluntary up and down motion of the jaw; in other words, she could not open it as easily as she would like to, because as she states, at the time the bone at the joint of the jaw with the skull on that side––the sidewise motion of the jaw was perfectly all right but it hurt her to do it. She could move it completely, but it hurt her in this place (indicating.) Her teeth came together accurately, tending to show there was no break in the jawbone itself; there was no sign of fracture or dislocation of the jaw. My impression at the time was traumatic sprain. In other words sprain due to forcible injury of the left––of the junction of the left part of the jaw with the skull; the joint there. The muscles of her right forearm and arm from her shoulder to her hand were sore and aching. Her right middle finger––she had a skinning on the back of the knuckle, of the first knuckle above the hand, with moderate swelling of the whole finger. The back surface of her left hand was slightly swollen and tender. Sore to the touch at the base of the index and middle finger. The witness testified as to Dan Deevy, Sr., he complained of soreness over the cheekbone, and tenderness on pressure over his cheekbone, and he was nervous and upset and his heart was a little more rapid than usual, probably due to excitement. The witness further testified as to examination of Mrs. Deevy. She complained of soreness in the muscles of her upper arms, up near the shoulders on both sides; in the muscles in the left side of her neck, and of soreness and tenderness to pressure over the mastoid prominence, the bony part behind her left ear, and down the side and back of both thighs, from the hips down to the knees. She had an abrasion, a skinning just below her left knee. She also had a skinning with soreness also behind the left knee. She also had a very slight skinned place in the front surface of the right knee. With regard to bruising, I will state from my experience a bruise will appear two or three days after a traumatic injury to the place which is bruised. In the first place a bruise is a fact of pathology. It is not an external evidence. A bruise may occur but there might not be any visible signs of it until several days later. But the visible signs occurring several days later could not have occurred.”

The jury awarded to each, as compensatory damages, $2,500. In that behalf the verdict was so plainly and outrageously excessive as to suggest at first blush passion or prejudice in fixing the amount. The passion and prejudice of the jury were, as shown by the record, appealed to on many occasions and in many ways. The chattel mortgage, not unlawful on its face, was, by plaintiffs' counsel, attacked as being unconscionable. That fact was stressed by the plaintiffs at all times. Because the defendants sought to enforce the terms of said mortgage they were by plaintiffs' counsel called “desperadoes,” “gun–men,” “racketeers,” etc. In short, the jury was, in effect, asked to, and apparently did, penalize defendants for writing and enforcing harsh contracts. Whereas the issue on trial was the amount of damages for personal injuries suffered by the plaintiffs. The compensatory damages must therefore be reduced. The award of exemplary damages is not before us. That stands or falls on statutory grounds. Civ. Code, sec. 3294. The compensatory damages to which each plaintiff was entitled must rest on the injuries suffered by each. Assuming that the injuries suffered by Julia Deevy were not because of a fall but because of the acts of the defendants, the case stands thus. If she had sued alone, had introduced the same evidence, and a jury had returned a verdict for $500, we submit neither party would be entitled, as a matter of law, to challenge the amount. Such sum, under all of the facts, would have been reasonable and in all cases damages, if allowed at all, must be reasonable. Civ.Code, sec. 3359. Including every element of detriment shown by the evidence, such verdict would obviously have been reasonable. By a parity of reasoning $300 in favor of Nellie Deevy and $300 in favor of Dan Deevy would also be reasonable. It follows that all in excess of said sum awarded as compensatory damages was excessive and should not be allowed. Seelye v. Harvey, 46 Cal.App. 448, 450, 189 P. 311; Loeb v. Kimmerle, 215 Cal. 143, 164, 165, 9 P.2d 199; Bellman v. San Francisco H. S. Dist., 11 Cal.2d 576, 586, 81 P.2d 894.

The defendants complain because the trial court gave an instruction purporting to apply to the instant case the rule defined in section 3283 of the Civil Code. As to whether any one of the plaintiffs would suffer any detriment resulting after the commencement of the action was distinctly a medical problem. Cordiner v. Los Angeles Traction Co., 5 Cal.App. 400, 404, 91 P. 436; Bauman v. City and County of San Francisco, 42 Cal.App.2d 144, 163, 164, 108 P.2d 989. There was not a particle of evidence given by a medical practitioner on that subject with reference to any injury suffered by any one of the plaintiffs. As applicable to the instant case the instruction was clearly prejudicial. The defendants contend it was improperly worded. We think it was. However, assuming that it was properly worded, in the absence of any evidence as to future detriment, it should not have been given. Bellman v. San Francisco H. S. Dist., 11 Cal.2d 576, 588, 81 P.2d 894. But, under the facts contained in this record, we think the giving of said instruction was not reversible error. The erroneous part of the instruction was addressed solely to future detriment. That factor can be treated without reversing the judgment. The uncontradicted evidence is to the effect that each plaintiff suffered some injuries for which he was entitled to recover. The amounts herein approved were not computed by taking into consideration future detriment and there is no reason that a new trial should be ordered.

Defendants earnestly contend that the plaintiffs' attorney was guilty of prejudicial misconduct. Except as hereinabove specified such misconduct consisted of epithets used by him in his argument. They were not free from criticism. We have hereinabove given the attack such consideration as we think it should have when we discussed the claim that the verdicts were excessive and were the result of passion and prejudice.

At about half past one in the afternoon, on March 30, 1940 E. A. Tassi appeared at the Deevy ranch and demanded that he be allowed to take the herd of cows described in the above–mentioned mortgage. The demand was at once refused. Tassi left the premises and later returned with more help and proceeded to take possession. Almost at once the affray commenced. As to who struck first the evidence is conflicting. The defendants complain because they were not, in their argument, allowed to claim self–defense. We see no error in the ruling. The defendants had invited the trouble. 4 Am.Jur. 149 “Assault and Battery,” sec. 45.

The defendants stress the fact that E. A. Tassi was acting on advice of counsel. They claim that fact was a complete defense against any award for exemplary damages. They do not cite any authority to that effect. It is clearly the law that one charged with assault may not rely on the fact that he first took the advice of counsel. 6 C.J.S., Assault and Battery, § 88, p. 941. That the defendants consulted an attorney regarding their rights was a pertinent fact to introduce in evidence to guide the jury in estimating exemplary damages. 5 C.J. 685 “Assault and Battery,” sec. 128; Walker v. Chanslor, 153 Cal. 118, 124, 94 P. 606, 17 L.R.A.,N.S., 455, 126 Am.St.Rep. 61. But the evidence was admitted and no contention is made to the contrary.

The judgment herein is modified by reducing the award of the jury for compensatory damages from $2,500 in favor of each plaintiff to $300 in favor of plaintiff Dan Deevy, to $300 in favor of plaintiff Nellie Deevy, and to $500 in favor of plaintiff Julia Deevy, and by striking out the award of the jury for exemplary damages in the sum of $500 in favor of each plaintiff against the defendant J. A. Tassi. As so modified said judgment is affirmed as to each of the two defendants, and each party will pay his own costs on appeal.

STURTEVANT, Justice.

NOURSE, P. J., and SPENCE, J., concurred.