Fitzpatrick v. Clark

YORK, P. J.

The respondent brought this action against appellant alleging that the latter had alienated the affections of respondent’s husband. The case was tried before a jury which returned a verdict in favor of respondent for $30,000. Judgment was duly entered upon such verdict and thereafter an order was made granting a motion for new trial unless the respondent filed a remission of $7,500 of said judgment. Such remission was made and the judgment reduced to the sum of $22,500, whereupon the order of the court denying the motion for a new trial was filed and entered.

Special interrogatories submitted to the jury were answered as follows: “Special interrogatory No. 1. If your verdict is for the plaintiff in this action then, and only in that event, I instruct you to answer the following question: (1) Do you find that plaintiff is entitled to exemplary damages? Answer : Yes. (2) If your answer to the foregoing question is ‘Yes’, then what amount, if any, have you allowed in your general verdict as exemplary damages? Answer: $15,-000.00.

‘ ‘ Special interrogatory No. 2. If your verdict is for the plaintiff then, and only in that event, I instruct you to answer the following question: (1) In her conduct with Michael W. Fitzpatrick was Thelma Clark guilty of malice toward plaintiff ? Answer: Yes. ”

Appellant here urges that “it was error for the court to instruct the jury that it could award punitive damages if it found that defendant acted with malice and then define malice in two succeeding contradictory instructions, the first of which was a definition of malice in fact and the second a

[712]

definition of malice in law”. Appellant also contends that “the judgment of $11,250 punitive damages is not supported by any substantial evidence and, in any event, is excessive”, and that “the verdict for $22,500 is excessive”.

The instructions which appellant claims were contradictory and the giving of which prejudicially affected her substantial rights are as follows:

(1) The instruction referred to by appellant as “defendant’s No. 22” which was given at the request of appellant: “I instruct you that malice, as used in these instructions, means not only anger, hatred and revenge, but every other unlawful and unjustifiable motive. The words ‘malice’ and ‘maliciously’ import a wish to vex, annoy or injure another person which may be established either by direct proof or presumption of law. Of course, the phrase ‘direct proof’ as here used, means both testimony of eye witnesses and circumstantial evidence, that is, it means either or both of them. ’ ’