Opinion
As Modified on Denial of Rehearing Nov. 19, 1974.
Page 971
Carroll, Bradley & Ciancio, P.C., Rebecca L. Bradley, Denver, for plaintiffs-appellees.
Costello & Kofoed, P.C., Eugene F. Costello, Denver, for defendant-appellant.
COYTE, Judge.
Frank Novotny, Jr., filed suit by his father and next friend against defendant for assault and battery and asked for actual and exemplary damages. Defendant filed an answer alleging self defense and a counterclaim alleging assault and battery by plaintiff against defendant. Trial to a jury resulted in a verdict of $7,250 actual damages and $7,500 exemplary damages in favor of the son and a verdict of $50 in favor of Frank Novotny, the father.
Defendant appeals, contending that the court erred in allowing testimony on defendant's conviction in the county court, and in refusing to set aside the verdict because it was excessive and rendered as a result of passion and prejudice of the jury. We reverse.
Frank Novotny, Jr., and a friend were driving to a shopping center, as was defendant. At the entrance, the Novotny vehicle cut in front of defendant. Defendant then followed Frank, Jr., into the parking lot and parked. Frank, Jr., drove around the lot and then, at excessive speed, drove to where defendant was parked, screeched his tires, stopped and started to get out of the pickup he was driving. Defendant, who had his wife, child, and elderly parents with him, took a pistol from his car, pushed Frank, Jr., back into the cab of the pickup and struck him several times with the barrel of the gun. A friend of defendant happened by and grabbed defendant who then backed off from Frank, Jr.
Frank, Jr., called his father and was taken to the emergency ward of a nearby hospital where he was examined and blood was washed from his face. He had approximately six abrasions on his face and his ear lobe was cut. X-rays determined that there was no skull fracture. He then was given a presciption of Darvon for pain. The doctor saw him on three subsequent occasions and released him from his care thirteen days after the incident. Frank, Jr., testified that he was frightened and had headaches for a while, and that he missed a week of school; but there was no testimony that he suffered any disability from the incident after the time he was released from the doctor's care. The total out-of-pocket medical expense was $45.
Plaintiff's attorney, prior to trial, advised the court that he intended to offer certified copies of the record of the county court showing that as a result of the same transaction defendant was charged and was found guilty of assault and battery or assault with a deadly weapon. Defendant's attorney objected, and the court then advised plaintiff that he could only introduce the record if defendant denied the conviction, but the plaintiff could question defendant about the conviction and what happened. Plaintiff called defendant for cross-examination and asked the following questions and received the following answers:
'Q. You were found guilty in that trial, were you not?
A. I am a little confused about that. I was found guilty of simple assault, but there was no fine or jail sentence imposed. Q. You were found guilty of simple assault?
A. Yes, Sir.'
It was not improper for plaintiff to present this evidence since the subject matter of the county court charges and the subject matter of this suit are identical. Harper v. Blasi, 112 Colo. 518, 151 P.2d 760; North River Insurance Co. v. Militello, 100 Colo. 343, 67 P.2d 625; See Asato v. Furtado, 52 Hawaii 284, 474 P.2d 288.
Plaintiff's attorney, in his closing argument relative to general damages, argued as follows:
'Did you hear what he said on the witness stand? Did you hear when I asked him the questions of what happened to him in the Couny Court? Well, he laughed, he smiled. He thought it was kind of funny. Yes, he was found guilty in the County Court, but nothing happened to him. He thought that was kind of a joke.
This case is not a joke. Just because he got off in the County Court, I hope you won't make the same mistake. I ask you, please, ladies and gentlemen, to bring in what I call a strong verdict--a verdict that is strong enough to make him respect law and order, a verdict that is strong enough to teach him he can't break the law himself, a verdict high enough to show him he should never again take the law in his own hands, a verdict so high he will never again dare to treat anyone as he has treated my client. I want to ask you to teach him a lesson, if you will do that.'
This argument was improper and prejudicial. General damages are awarded to make one whole, not to punish the alleged wrongdoer and teach him a lesson.
Furthermore, in asking for exemplary damages, plaintiff argued in part as follows:
'We ask you to bring us the justice we didn't get in the County Court in this case and that we are entitled to in this case. I ask you to put an end here and now to his arrogant violence that is in evidence in this case. Please help us on this.' (emphasis supplied)
Plaintiffs were not parties to proceedings in the county court. The issue there was between the State of Colorado and defendant. It was highly improper for plaintiffs to assert that they should be given the justice which they did not receive in the county court.
Finally, the father was awarded $50 even though there was no damages instruction tendered by either party or given by the court on the question of damages that the father may have incurred.
The trial judge, when the motion for new trial was argued, stated, 'There is no question but what the jury was outraged by the action of the defendant . . ..' And further the court stated, 'There was nothing before the court other than the amount of the verdict to show passion and prejudice.'
Plaintiff's improper closing argument may not have influenced the jury, but it had the capacity to do so. Downing v. Lillibridge, Colo.App., 525 P.2d 488. The damages awarded are so disproportionate to the injuries sustained that the jury must have been influenced by partiality or prejudice, or were misled by some mistaken view of the merits of the case. Larson v. Lindahl, 167 Colo. 409, 450 P.2d 77; Ark Valley Alfalfa Mills, Inc. v. Day, 128 Colo. 436, 263 P.2d 815.
Therefore, because of the excessive verdict the judgment is reversed and the cause remanded for a new trial on all issues.
SILVERSTEIN, C.J., and VanCISE, J., concur.