Wade v. Thayer

Crockett J., delivered the opinion of the Court; Temple, J., Wallaoe, J., and Bhodes C. J., concurring; The plaintiff sues to recover damages for an assault and battery alleged to have been committed on him by defendant Thayer, who is the keeper of a hotel, and by the other-defendants, who were his servants and employees — the one as clerk and the other as porter of the hotel. The plaintiff recovered a judgment for $1,250, and the defendants, having moved for a new trial, which was denied, now prosecute this appeal. There was evidence at the trial tending to show that the plaintiff, in violation of the rules of the hotel, and without having first obtained leave to do so, entered one of the bedrooms whilst in a state of intoxication and went to sleep on the bed without undressing; that, having been discovered in this condition by the clerk and porter, they made a violent assault upon him, inflicting serious bodily injuries, from which he suffered great bodily pain, and from the effects of which he has not yet fully recovered. The evidence for the plaintiff tended to show a [584] brutal assault by the clerk and porter, without any other provocation than that the plaintiff was found on the bed under the circumstances above stated, and that the defendant Thayer, though not present at the commencement of the assault, came into the room about the time it was concluded, and either pushed or knocked the plaintiff down whilst attempting to eject him from the house. The defendants were examined as witness on their own behalf, and gave a different version of the affair, in which they were corroborated by several other witnesses, who testified that they were present. The evidence for the defendants tended to show that the plaintiff, on being requested to leave the room, assaulted the clerk and knocked him down, and that the porter, interfering to protect the clerk, knocked the plaintiff down, inflicting the injuries complained of. Some of the witnesses for the plaintiff testified, in rebuttal, that no one was present during the affray except themselves and the plaintiff and defendants; and, after the plaintiff rested, the defendant offered to recall the plaintiff and the defendants on their own behalf, to prove that the other witnesses for the defendants were present at the affray as they had testified, but the Court excluded this testimony, and this ruling is assigned as error. I think the testimony was competent, material and not cumulative, and ought to have been admitted. When these witnesses of the defendants had testified that they were present and witnessed the affray, the defendants could not have anticipated that the plaintiff would afterwards attempt to prove that said witnesses were not present; and if they had offered to show by other testimony that said witnesses ■ were present, in advance of any proof by the plaintiff to the contrary, it is doubtful whether such evidence would have been admissible at that stage of the case. The defendants were not bound to maintain the credibility of their witnesses ■ by other evidence until after they had been assailed by the plaintiff; and no effort was made to impeach them except by the plaintiff’s proof in rebuttal, to the effect that [585] tbey were not present as tbey bad testified. It was then, for tbe first time, tbat tbe defendants bad an opportunity to contradict tbe plaintiff’s witnesses on tbat point, and to maintain tbe credibility of tbeir own by showing tbat tbey were in fact present as tbey bad deposed. Tbe evidence on bebalf of tbe plaintiff, to tbe effect tbat these witnesses of tbe defendants were not present, conld have been offered for no other purpose than to impeach tbeir credibility, and was conpetent for this purpose. It is a well settled rule tbat a party, whose witnesses are sought to be impeached by proof of ibis character, may support tbeir credibility by rebutting evidence. Tbe only other errors assigned relate to tbe instructions given and refused. But inasmuch as tbe judgment must be reversed for tbe error already noticed, I deem it unnecessary to discuss tbe instructions in detail, and it will suffice to say tbat I discovered no error in tbe instructions given at tbe instance of the plaintiff; and as to tbe instructions requested by tbe defendants, and which were refused by tbe Court, I think tbey were properly denied. Tbey embody but two general propositions, i. e.: first, tbat the defendants were not liable for punitive or exemplary damages, however malicious and unprovoked tbe assault may have been, but only for tbe actual damage which tbe plaintiff suffered; second, tbat if either one of tbe defendants was not present at, and did not advise or aid in tbe assault committed by tbe others, be is not responsible in damages. Tbe first proposition is not sound law. It is too well settled to need tbe citation of authorities, tbat exemplary damages may be given for a wanton, malicious and unprovoked assault upon tbe person, and it is equally plain tbat if tbe asault was committed by Land and Carmody, whilst on tbe performance of tbeir duties as the- servants and employees of Thayer, tbe latter would be responsible for tbe actual damage which tbe plaintiff suffered, even though be was not present and in no manner consented to or aided in tbe assault. He would be responsible as principal for all tbe actual damage caused by bis agents and servants in [586] the performance of their official duties; but- would not be liable for their wanton and malicious acts done without his consent or approval. This question was fully discussed and the authorities cited in Turner v. N. B. and M. R. R. Co,, (34 Cal. 599) and need not be further noticed. Judgment reversed and cause remanded for a new trial.