Opinion
July 7, 1970
Editorial Note:
This case has been marked 'not for publication' by the court.
Bradley, Campbell, Carney & Johnson, Golden, for plaintiff in error.
Leland S. Huttner, Lionel Dunievitz, Denver, for defendant in error.
ENOCH, 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.
This is a tort action in which Gholston sued Guildner and Walton for injuries which he allegedly received in an assault and battery. Trial was to a jury which exonerated Walton and rendered its verdict of $25,000.00 in favor of Gholston against Guildner. There was ample evidence to support the jury's verdict that Guildner was liable. The plaintiff had attempted to prove that Walton was also liable on the theory that he had joined Guildner in a conspiracy to commit the assault and battery.
On appeal, Guildner claims the jury ignored one of the instructions given by the court. This instruction provides in part:
'You are instructed to bring in a verdict in favor of the plaintiff, Robert Gholston, and against the defendants, and award him damages if and only if you find that:
'(1) The defendants, Fred Guildner and Donald Walton did in fact conspire to commit an assault and battery upon said plaintiff and that said assault and battery was the proximate and direct cause of injuries sustained by the plaintiff * * *'
The gravamen of the action in this case was the intentional tort of assault and battery which resulted in injury to Gholston. Although conspiracy to commit the act was an allegation in the complaint and was again mentioned in the above instruction, conspiracy was not an integral element in this case.
The conspiracy instruction given was not correct. If followed, the jury could return a verdict for the plaintiff, if, and only if, they found that the two defendants had conspired to commit the assault. In a tort action either or both of the defendants may be held liable with or without proof of a conspiracy if the evidence justifies the verdict. Here, in light of the other instructions and the separate forms of verdicts given to the jury without objection by the defendant, the jury must have determined that the defendant Walton had not committed the alleged assault nor had he been a part of a conspiracy. This did not, however, preclude the jury from determining from the evidence that Guildner was guilty of the assault and battery and responsible for the resulting damages. Although the instruction was improperly worded, we find it harmless error in this case.
Guildner's second assignment of error is that the verdict was excessive and was a result of prejudice or misunderstanding by the jury. In addition to medical expenses of $2,050.00, there was evidence as to loss of past and future earnings as well as pain and suffering incurred by Gholston as a result of the assault and battery. Where the jury was properly instructed on the subject of damages, as was the case here, the amount to be awarded is a matter very largely within their discretion. Unless a clear abuse of discretion is shown, this court will not interfere with the finding of a jury in such circumstances. Boyer v. Elkins, 154 Colo. 294, 390 P.2d 460.
The judgment of the trial court is affirmed.
SILVERSTEIN, C.J., and DWYER, J., concur.