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Williams v. Klemovitz

Supreme Court of Arizona

February 20, 1939

WALTER C. WILLIAMS, JESSE D. WILLIAMS, CECIL R. WILLIAMS and ALPHA E. RUDD, Appellants,
v.
GABRIEL KLEMOVITZ, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. E.G. Frazier, Judge. Judgment affirmed.

Messrs. Cox & Moore, for Appellants.

Mr. Herman Lewkowitz and Mr. Raymond R. Wein, for Appellee.

OPINION

LOCKWOOD, J.

Gabriel Klemovitz, hereinafter called plaintiff, brought suit against Walter C. Williams, Jesse D. Williams, Cecil R. Williams and Alpha [53 Ariz. 194] E. Rudd, hereinafter called defendants, for damages for the alleged breach of a lease held by plaintiff on certain premises owned by the defendants. The prayer of the complaint was for both compensatory and exemplary damages, the allegations being that the breach of the lease and the acts done in pursuance thereof were wanton and malicious in their nature. The case was tried to a jury which returned a verdict in the sum of fifteen hundred dollars in favor of plaintiff, without indicating how much was for compensatory and how much for exemplary damages, whereupon this appeal was taken.

There are two assignments of error, the first being that the court erred in instructing the jury as follows:

"The Court instructs the jury that if you find from the evidence that the eviction of the plaintiff from the premises in question was wanton and malicious, then the case is one justifying the imposition of what is known in law as exemplary or vindicative damages, in addition to the actual damages of which I have heretofore instructed you. And in arriving at the amount of exemplary damages to be imposed, if any, you should take into consideration all of the facts and circumstances in the case in question, and the position, character and feelings of the plaintiff."

And second, that the court erred in instructing the jury as follows:

"You are instructed that malice is defined by the Code of Arizona as follows: 'Malice and malicious import a wish to vex, annoy or injure another person or an intent to do a wrongful act, established either by proof or presumption of law.'" (Rev. Code 1928, § 4478.)

The actual eviction was made by John H. Williams who was admittedly the agent of defendants, and the questions raised by the appeal are (a) whether exemplary damages are permissible against a principal for the act of his agent where the personal safety and [53 Ariz. 195] comfort of the injured party is not entrusted by the principal to his agent, and (b) whether there is any evidence in the case of malice sufficient to support a verdict of exemplary, as well as compensatory, damages.

The question of the extent of the liability in damages of a principal for the act of his agent, where not only compensatory but exemplary damages are prayed for, is an interesting one, and the law on the subject is far from harmonious. We think, however, in the present case we need not determine this question. The record shows that John H. Williams was placed on the stand and cross-examined

Page 270

by the plaintiff. The property involved was identified, and the following conversation occurred between counsel for ...


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