
    August Schmidt, Appellee, v. Arthur Mehan, Appellant.
    Assault and battery: evidence: submission of issues. In this action. 1 for assault and battery, the evidence is reviewed and held to require submission of the question of the character and nature of the assault.
    Same: excessive verdict: new trial. A verdict may be so excessive 2 as to indicate passion and prejudice, and to authorize a new trial for that reason; but it, does not necessarily follow that a new trial should be granted because the verdict is excessive. Thus where an excessive verdict for assault and battery was reduced by the trial court, the defendant was not entitled to a new trial.
    
      Appeal from, Ida District Court. — Hon. M. E. Hutchinson, Judge.
    Thursday, November 5, 1914.
    This was an action to recover a balance of $77.46 for labor performed for appellant. A second count sought to recover damages for assault and battery. Trial to a jury, which returned a verdict for $577.46. The trial court ruled that the verdict was excessive, and required plaintiff to remit $200 or submit to a new trial. Plaintiff remitted, and judgment was entered for $377.46. Defendant appeals.
    
    Affirmed.
    
      J. C. Walter, for appellant.
    
      George H. Clark, for appellee.
   Preston, J.

No question is made as to the recovery on the first count for wages, and that the amount due for that was $77.46. Two points are argued: First, that the verdict is not sustained by the evidence; and, second, that the damages were excessive, and that such fact evinces passion and prejudice on the part of the jury, because of which a new trial should be granted.

The parties had some words about the manner in which plaintiff handled the team, and plaintiff told defendant to pay him off as soon as they got home. Defendant contends that plaintiff was at fault for the alleged assault and battery. But mere words do not justify an assaui^ The evidence introduced on behalf of plaintiff is that, when plaintiff told defendant to pay him off, defendant took hold of plaintiff’s shoulders and choked him, and then put both hands around his neck and lifted him off the ground, and that defendant hit plaintiff once on his left side. He says:

I couldn’t hear for five hours, and my head was ringing and blowing for the next three or four days. Then I started home. I went across the field to Anderson’s place. I was sick. I did not rest much that night. On Sunday I was in Ida Grove. My head was aching and blowing. It was just ringing. I couldn’t hear right. My face hurt me. It was swollen. On Sunday I went to the lawyer, and then I went to the doctor. He examined me, and I paid him a dollar. I lost two days’ work, worth $2 a day and board.

Other witnesses testified as to the appearance of plaintiff after the difficulty. Another witness says defendant told him that on account of plaintiff’s breaking up some machinery, and because he was going to quit, there was a sore feeling between them. This is denied by defendant. Defendant testified :

I did not take hold of plaintiff’s neck with either hand and choke him, and I did not touch his neck with either hand. I did not strike the plaintiff in his face with either hand. I took hold of him by . both his arms and shook him a little. Then I let him go, and plaintiff ran across the field.

He also testifies that before this trouble plaintiff complained about his hearing and that his ears bothered him some times. Defendant is corroborated by his wife as to plaintiff’s hearing. Witness tlepner, a brother-in-law of defendant, who was present at the altercation, says he did not see defendant take hold of plaintiff. He says he was fifteen feet away, and the horses were between him and the parties. Two witnesses in rebuttal say plaintiff’s hearing was good prior to the trouble.

Clearly there was such.a conflict in the evidence as to make it a question for the jury. The verdict has ample support. Plaintiff was not seriously hurt. The amount of damages was thought by the trial court to be excessive. The court was on the ground, saw the parties and the witnesses, and was in a position to judge the matter, and we think properly required a reduction in the amount assessed.

But it is said by appellant that, because the verdict- was found to be excessive, it indicates passion and prejudice on the part of the jury, and that, therefore, a new trial should be granted. He cites: Saunders v. Mullen, 66 Iowa, 728; Sadley v. Bean, 38 Iowa, 684. The (jainageg may be so- excessive as to evince prejudice and warrant a new trial. This depends somewhat upon the evidence in the case. In the Saunders ease it was said: ‘ ‘'

When the actual damages are so small, the amount allowed as exemplary damages should not be so large, It evinces, we think, prejudice on the part of the jury, caused in this case, no doubt, by the arbitrary conduct of the defendant, and the total disregard of the ordinary-requirements and conduct due from any person to his unfortunate debtor, and which we have no doubt was intensified in the minds of the jurors because the plaintiff was a woman, who seems, under the trying circumstances', to have acted with great prudence and discretion. Still we cannot but think the punishment too great. The amount of punitive damages that may be given in any case.rests largely in the discretion of the jury. But such discretion, is not unlimited. A cour-t, and especially an appellate tribunal, should not interfere in such cases unless the conclusion is' irresistible-that the-amount allowed" is so great-as-tb-evince'prejudice on the par-t-of 'thé-jury. •"

But it does not necessarily follow, because tbe damages are'held tó’be excessive, that a new trial should be granted. Doran v. Railway, 117 Iowa, 442; Knowlton v. Light Co., 117 Iowa, 451. Au excessive verdict reduced, merely shows, in the opinion of the court, that the evidence did not authorize a verdict for so large an amount as that fixed by the jury. Baxter v. Cedar Rapids, 103 Iowa, 599. There is nothing in the instant case calculated to arouse the sympathies or passions of the jurors. The trial court was of opinion that the jury-had allowed too much, and reduced it.

There was no error, and the judgment is — Affirmed.

Ladd, C. J., and Evans and Weaver, JJ., concur.  