Voy v. Shelley

WARNE, J. pro tem.* This is an appeal from a money judgment entered upon a verdict for plaintiff in an action for assault and battery. The jury awarded plaintiff $500 general damages and punitive damages in the sum of $3,000, but no special damages.

, The complaint, in the charging part, alleges: ‘ ‘ That on or about the 28th day of August, 1956, ... the defendant wrongfully, unlawfully, and violently assaulted and beat the plaintiff, and defendant struck plaintiff in and about the face fracturing plaintiff’s jaw and causing injury to his left eye, and numerous contusions and abrasions about the plaintiff’s face and head.” The prayer is for special and general damages. Punitive damages are not mentioned.

In its instructions to the jury, the trial court included the following instruction:

“It is a rule, in a case of this kind, that, when an assault is wanton, unprovoked, causeless, with a desire to hurt, to gratify anger or malice, the jury, if they think the actual damages awarded are not sufficient punishment, are warranted in adding to the actual damages such a sum as punitive damages, which, taken together with the actual damages, will afford a sufficient punishment to the person who has done the wrong. Whether you will add punitive damages or not is left solely to the discretion of the jury.”

As grounds for reversal of the judgment defendant contends that the giving of the instruction on exemplary damages and the award of exemplary damages was error since the issue was not raised in the pleadings, nor by the evidence, and further that the instruction as delivered was erroneous.

In support of defendant’s first contention that “The giving of an instruction on exemplary damages and the award of exemplary damages was error because the issue was [134]not raised by the pleadings” defendant cites the case of Lorenz v. Hunt, 89 Cal.App. 6 [264 P. 336], as being the leading case on the subject. However, as pointed out by plaintiff, that case has been expressly overruled by the Supreme Court in Vaughn v. Jonas, 31 Cal.2d 586 [191 P.2d 432]. In the Vaughn case the allegations raised in the issue of malice were identical with the allegations raising the issue in the instant case, i.e., the complaint alleged that “the defendant wrongfully, unlawfully and violently assaulted” the plaintiff, etc., and the grounds urged for a reversal were substantially the same as urged in the instant case. It was held that such allegations were sufficient to raise the issue of malice, the court saying, at page 603: