Kim v. Chinn

WARD, J. This action is one for damages for assault and battery brought against O. S. Chinn, Jack Chinn, Johnson Chinn, Chin Wai and two fictitious defendants. Judgment was entered in favor of the plaintiff upon a general verdict against the two defendants first named for the sum of $7,500, and against the first named defendant for an additional sum of $1,000 as exemplary or punitive damages. These two defendants appeal from the judgment.

[859]The complaint contained eight counts. Counts 4, 5, 6 and 7 may be at once eliminated from consideration, since these charge the offense to have been committed either by defendants who were not served with process, or by fictitious defendants as to whom the complaint was dismissed.

The first count charges the assault and battery to have been perpetrated by Jack Chinn, acting alone, with malice and ill will; the second, that it was committed by all O. S. Chinn’s codefendants acting under his direction and command and in his presence; the third, that it was committed by 0. S. Chinn, and the eighth, that it was perpetrated by Jack Chinn, 0. S. Chinn and the two fictitious defendants “with malice and ill will and with the intent and design of injuring and oppressing” plaintiff.

By their answer Jack and 0. S. Chinn deny generally and specifically the allegations of counts 1 and 2 made against them respectively, and plead that they acted in self-defense; 0. S. Chinn denies the allegations of count 3, pleads self-defense and avers that the plaintiff maliciously assaulted him; and both Jack and 0. S. Chinn deny generally and specifically the allegations of count 8 and repeat their plea of self-defense.

In support of the appeal it is contended that no punitive damages may be awarded against a joint tort-feasor unless his co-tort-feasor is also charged with malice; and, second, that the judgment for compensatory damages against the two appellants is unsupported by the evidence and is also erroneous on other grounds.

The testimony, so far as the principals are concerned, is conflicting. It appears that plaintiff, who occupied living quarters belonging to 0. S. Chinn, was in arrears in the payment of his rent. On the evening of April 9, 1939, the latter called upon his tenant, asked for the rent and, after some talk, was invited in. An altercation followed, during which 0. S. Chinn threatened to put a padlock on the quarters if the rent was not paid that evening, and plaintiff stated that he would burn the place down if this was done. The two men then set to fighting, going through the door, off the porch and on to the gravel. Plaintiff, an ex-pugilist, thirty-eight years of age, denies that he knocked 0. S. Chinn down, but admits that a lodger occupying another cabin warned him to stop fighting; and there is evidence that serious injuries were sustained by 0. S. Chinn, a frail and older man,