Menninger v. Taylor

11 Ohio C.C. (n.s.) 288, 1907 Ohio Misc. LEXIS 337

• Court: Hamilton Circuit Court
• Decided: December 28, 1907
• Status: Published

Opinion

In an action for damages for assault and'battery, the following instruction is erroneous:

‘ ‘ If you find from the evidence .that the conduct of the defendant was not the result of fear of injury to himself, nor such excitement as the circumstances of the case might arouse in the mind of a man of ordinary good temp'er, but was the result of provocation or sudden anger brought into action by the occasion, the jury may go beyond compensation for loss and suffering, and may add any sum you may think reasonable by way of punishment of the defendant and an example to the public.”

Provocation may be considered in mitigation of punitive damages, but not as a ground for awarding such damages. Mahoning Valley Ry. Co. v. De Pascale, 70 O. S., 179.

The condition of sudden anger may have been the result of some unlawful act of the plaintiff, and yet under this charge would warrant exemplary damages.

The evidence, which is all before us, discloses an unprovoked and malicious assault, and the jury under proper instructions could hardly award less damages; but the error seems to be, under the ruling of our Supreme Court, reversible. Globe Insurance Co. v. Sherlock, 25 O. S., 50.

Judgment reversed and cause remanded for a new trial.’