St. Ores v. McGlashen

Searls, C. J. This is an action to recover damages for an assault and battery committed by defendant. [149]Plaintiff had a verdict and judgment for eleven hundred dollars and costs. The appeal is from the judgment, and from an order denying a new trial.

The seventh instruction asked by defendant and refused by rthe court enunciated the proposition that before the jury could give exemplary damages against the defendant, they should be satisfied beyond a reasonable doubt that the alleged assault and battery committed by the defendant (if any), upon the plaintiff, was maliciously committed by said defendant.

The instruction does not embody the law as applicable to civil cases. A preponderance of evidence is all that is necessary to warrant a finding in such cases, and the rule that prevails in criminal cases, and which requires evidence to satisfy the mind beyond a reasonable doubt, has no place here. It follows that the instruction was properly refused.

The only other instruction refused, which it is claimed should have been given, is the third.

This instruction states in substance that, while intoxication is in itself no excuse or defense for the commission of a wrong, yet this goes only to the justification of the wrong; “but when it is alleged, as it is here alleged, for the purpose of inflaming the damages sought to be recovered against the defendant for that wrong, and to make them not only compensatory, but vindicatory,” etc., then, and in such a case, if the jury believed from the testimony that defendant was so intoxicated that he did not know what he was doing, and was therefore incapable of forming any intent whatever, they should not assess exemplary damages, but confine their verdict to actual damage.

The complaint does not charge or show that defendant was intoxicated, and the statement shows affirmatively that the testimony as to intoxication was introduced by defendant.

No instructions on the subject were, so far as appears, [150]offered or given on behalf of plaintiff. The statement in defendant’s instruction, therefore, that intoxication of the defendant was alleged for the purpose of inflaming the damages, involved an assumption of facts not warranted by the record, and the instruction was properly refused for that cause, if for no other.