Brooks v. Bergholm

470 P.2d 154, 256 Or. 1, 1970 Ore. LEXIS 444
CourtOregon Supreme Court
DecidedJune 10, 1970
StatusPublished
Cited by11 cases

This text of 470 P.2d 154 (Brooks v. Bergholm) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brooks v. Bergholm, 470 P.2d 154, 256 Or. 1, 1970 Ore. LEXIS 444 (Or. 1970).

Opinions

McAllister, J.

This is an action for assault and battery in which the jury awarded plaintiff Brooks $1,000 general damages and $2,000 punitive damages. Defendant Bergholm appeals, and objects to the admission of certain evidence and the failure of the court to give two requested instructions.

Plaintiff’s wife had formerly been married to the defendant, and Barbara, a child of that marriage, lived with plaintiff and her mother. The altercation occurred when plaintiff and his wife went to defendant’s home to pick up Barbara, who had been visiting her father. An argument developed between Brooks and Bergholm over the former’s treatment of Barbara. The evidence is in conflict as to what was said and who struck the first blow. Plaintiff’s witnesses testified that Brooks did not hit Bergholm, while defendant’s witnesses swore that Bergholm hit Brooks, but only after Brooks had attacked him. Brooks suffered a cracked tooth, facial injuries and bruises of his ribs, back, and private parts where he allegedly was kicked.

The first matter we consider concerns the jury’s consideration of evidence of defendant’s financial condition. Defendant, called as a witness by plaintiff, testified that he owned two parcels of real estate in addition to his home, that he derived rental income from one of them, that he owned some mining stock, and had an annual income between thirteen and fourteen thousand dollars. Other miscellaneous assets need not be detailed here. We think it a fair charaeteriza[4]*4tion to say that the evidence presented a picture of a person of moderate means, practically free of debt, comfortably situated, but by no means wealthy.

Defendant did not object to the introduction of this evidence, and concedes that it was relevant to the question of the amount of punitive damages. He claims, however, that the trial court erred in refusing to give the following requested instruction:

“You are instructed that evidence as to the wealth of the defendant has no bearing on your determination of compensatory damages.”

Plaintiff does not contend that consideration of this evidence in determining the amount of compensatory damages would be justified. He does argue that refusing to give the instruction was not error.

First, he claims that the instructions on compensatory damages adequately informed the jury of the elements that were to be considered. We do not agree. It is true that the court instructed the jury that it was the aim of the law to “compensate for damage to the extent of the injury” and that plaintiff, if he prevailed, would be entitled to a verdict which would “compensate him for and to the extent of the injury sustained by him.” The jury was also told, however, that there was “no fixed or inflexible ride or standard whereby you are to measure damages in a case of this kind,” and that the matter was in their judgment and discretion “applied to and upon the evidence in this ease.” The instructions on punitive damages did not mention the proper use of the evidence in question. Without some indication that the evidence of defendant’s finances was introduced for a limited purpose, we think the jury might well have taken it into consideration as a part [5]*5of “the evidence in this case” upon which they were instructed to base their award of compensatory damages.

In State Highway Com’n v. Deal et al, 191 Or 661, 233 P2d 242 (1951) we held that it was error to refuse to give an instruction telling the jury that certain evidence, admitted for a limited purpose, could not be considered in connection with another issue. The opinion rejected the argument that giving the instruction was a matter for the trial court’s discretion:

“With this argument we find ourselves unable to agree, for the reason that no one during the trial ever suggested — in the presence of the jury at least —that the evidence was offered and received for a particular limited purpose, and, so far as the instructions of the court were concerned, either at the time that the evidence came in or in the charge at the conclusion of the case, the jury were left entirely free to find the market value of Parcel No. 1 by doing the very thing which the rejected instruction would have told them not to do. * * * [W]hen evidence is competent for one purpose but incompetent for another, it is error if the court refuses to limit the evidence to the purpose for which it is competent. State v. Moore, 180 Or. 502, 507, 176 P. 2d 631, 177 P. 2d 413; State v. Farnam, 82 Or. 211, 253, 161 P. 417, Ann. Cas. 1918A 318; State v. Finnigan, 81 Or. 538, 544, 160 P. 370; 53 Am. Jur., Trial, 515 § 670.” 191 Or at 675-676.

Plaintiff also argues that the instruction as requested was defective in that it referred only to the wealth of defendant, whereas to be fair it should have cautioned the jury not to consider defendant’s “wealth or poverty.” We think this contention is without substance. One of the common meanings of “wealth” is:

“Measure or degree to which one possesses things of value or the means of obtaining them; [6]*6relative state with respect to purchasing or spending power.” Webster’s New International Dictionary (2d ed unabridged).

While the requested instruction might have been more happily phrased, we think that in context the word “wealth” could only be understood as used in its neutral sense.

The error in refusing this limiting instruction requires that the case be reversed. Because the error related to the amount of damages, we cannot say that it did not affect the jury’s verdict. Baxter v. Baker, 253 Or 376, 451 P2d 456 (1969); Martin v. Hahn, 252 Or 585, 451 P2d 465 (1969); State Highway Com’n v. Deal et al, supra, 191 Or at 676.

Although nothing more is necessary to our disposition of the ease, we think it advisable to consider defendant’s other assignments of error, which involve matters which are likely to arise again if the case is retried.

Plaintiff and one of his witnesses were permitted, over defendant’s objection, to testify on rebuttal that defendant had a bad reputation in the community for pugnaciousness. Defendant assigns the admission of this testimony as error, contending that his character was not in issue. Because he had admitted hitting the plaintiff, he argues, this testimony was not relevant to any issue in the ease and was prejudicial to him. Plaintiff contends that the evidence was admissible because the question of first aggression was an issue. Although we have never decided this precise question, the authorities and the reasoning of our prior eases convince us that the evidence was properly admitted.

[7]*7In Ms answer, defendant admitted an altercation between tbe parties, and alleged as an affirmative defense that plaintiff “provoked and assaulted” defendant and that defendant “necessarily defended himself.” Plaintiff denied these allegations. At the trial, the evidence was in direct conflict as to who struck the first blow. The jury thus had to decide who was the aggressor. When this is an issue in an assault and battery case, our decisions have held evidence of the plaintiff’s reputation for violent behavior admissible. Roskop v. Trent, 250 Or 397, 399, 443 P2d 174 (1968); Linkhart v. Savely, 190 Or 484, 494, 227 P2d 187 (1951). See, also, Rich v. Cooper, 234 Or 300, 305, 380 P2d 613 (1963) ; Sims v. Sowle, 238 Or 329, 338, 395 P2d 133 (1964) (concurring opinion).

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Bluebook (online)
470 P.2d 154, 256 Or. 1, 1970 Ore. LEXIS 444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brooks-v-bergholm-or-1970.