The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1894-04-13


to be contrary to the law and the
evidence.
OPINION OF THE COURT BY BICK-
ERToN, J.
This is a suit to recover damages
sustained by the plaintiff, in con-
sequence OF an assault committed by
defendant on the plaintiff with a
stone, whereby he was seriously in
jured; the damages were laid at $500
and the case was first heard in the
District Court of Makawao, where
Judgment was given for the plaintiff
for $50 damages. An appeal was
taken to the Circuit Court of the
Second Circuit, and the case came
on for hearing at the December
Term 1893, of said Court, when the
jury rendered a unanimous verdict
for plaintiff, assessing the damages
at Three Hundred Dollars $4,000, to
which verdict defendants counsel
noted exceptions, as being contrary
TO law and against the weight OF eVi-
dence; and gave notice OF motion
for new trial. The motion was
argued and overruled by the Court,
and an appeal was noted to this
Court, aud the matter now comes
here on a duly allowed bill Of excep
tons.
The only question before us is
whether the verdict was contrary TO
the law and evidence. There are no
exceptions taken to any ruling of
law made during the trial, or to the
charge of the Court to the jury.
The following stipulation is on file:
"The evidence taken before the jury
at the Lshaina term being identical
with that taken before the District
Magistrate as appears from his notes
on file herein, it is hereby stipulated
that such notes shall be considered
as part of the Bill of Exceptions
herein in lieu of a transcript of the
reporters notes." The evidence of
DR.. Herbert shows that he was called
to attend the plaintiff, and found him
with a very serious wound on the
head near the temple which might
have been very dangerous; that the
wound had been caused by some
blunt instrument or weapon, used
with great force and that his fee for
treatment of the wound was $50.
John Ferrira testifies to seeing the
wound, and the large amount of
blood plaintiff lost and the nature of
the wound. The plaintiff testifes
that the cause of the trouble between
defendant and himself was the
breaking of some window glass by
defendants children; that defendant
came to him and shook hands, then
took him unewsres, and with stone
which he had hidden behind his
back, struck him on the head, caus-
ing the said wound: that be ran
away, followed by defendant, who
continued to throw stones at him
and assault him; that he suffered
great pain from the injuries inflicted
on him, and was unable to work for
sometime in consequence.
The defendant testified in his own
behalf ar 3eaisd that he struck
plaintiff with stone, but admitted
that he assaulted him, but only with
his hand. He also says that he was
angry because plaintiff chased his
children with a gun and that when
be went to plaintiffs house, he
Iplaintiff) drove him out of the house
with hoe; plaintiff denies this and |
says that he had a gun and was out |
shooting birds, but before he chased |
The children he left his gun on the |
The jury evidently did |
not believe defendants story, and we
10 not see how they could in the face
If the evidence of DIR. Herbert and /
ne other two witnesses for the plain
If as to the nature Of the wound.
They certainly could not believe that
be wound described could have been
,aused by the hand of the defendant
without any weapon in it; they evil
leDtly ignored the defendants evil
ience entirely, and decided the case
IN the evidence offered for the plain
if. They also had the evidence
hat the defendant had pleaded
yuilty on a criminal prosecution to
barge of assault on plaintiff with a
dangerous weapon, stone.
We are of the opinion that the
ury could not have found any other
erdict than one for the plaintiff, and
hey evidently considered that $500
vas not too much or excessive damag-
s to allow the plaintiff, taking into
the actual damages he
lad sustained, the great suffering of
mind and body he had undergone in
of the violent acts of
be defendant. The measure of
amages was with them, and we do
ot consider it excessive.
In defendants brief "the erroneous
barge of the Judge" is referred to:
Al