Smith v. Harris

By the Court, Boise, J.:

It is claimed by the appellant that the admission of evidence of general good treatment of appellant by respondent during the time appellant lived with respondent — the same being the time during which the assaults and batteries are alleged to have been committed — is error. In all cases of willful assaults and batteries exemplary damages may be given by the jury, and to ■ increase these damages express malice may be shown by the plaintiff. Express malice may be shown, says Mr. Greenleaf, vol. 3, sec. 145, by evidence of a deliberately formed design to kill another, and the same rule applies to all malicious assaults; and such design may be shown by the circumstances attending the battery — by threats, lying in wait, previous quarrel or grudge. In a ease like this it is competent for the appellant to show that the general conduct of the respondent towards this child was such as to show that he had a spite at the child, evincing a cruel disposition towards him and a desire to abuse him, and this was the tendency of the evidence adduced by appellant.

In reply to and to rebut the presumption of express malice, it was competent for the respondent to show that by his acts *78 lie had evinced a kind disposition towards the appellant during the time that these continuing assaults were being committed. Such evidence would be very proper, in enabling the jury to come to a just conclusion in a case like the present one, where the truth of the evidence of the appellant must have been very seriously questioned, as in the case of the breaking of his arm, where he is contradicted by the physician who reduced the fracture, who says the appellant told him that he fell from the woodpile and broke it. (8 Greenl., sec. 144; Hil. on Remedies and Torts, sec. 15, p. 428, a; 14 Cal. 554 .)

The respondent, it seems by the testimony, was standing in the position of loco parentis, and had the lawful right to control appellant by reasonable corporeal punishment. Such punishment, even when necessary, might have been falsely represented, and the motives of the respondent misrepresented. To enlighten the jury on this subject, the general conduct of the respondent towards the appellant was properly shown to the jury by both parties, for such evidence was almost the only means of showing the motives and disposition which actuated the respondent in his conduct towards the appellant during the time of the alleged assaults and batteries. There being no error in the judgment of the court below it will be affirmed.