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Creel v. Shadley

September 10, 1973

CREEL, RESPONDENT,
v.
SHADLEY ET AL, APPELLANTS



Appeal from Circuit Court, Klamath County. Gerald O. Kabler, Judge pro tempore.

Robert Thomas, Klamath Falls, argued the cause and filed a brief for appellants Shadley.

Enver Bozgoz, Klamath Falls, argued the cause and filed a brief for appellants Weeks and Hicks.

Sam A. McKeen, Klamath Falls, argued the cause and filed a brief for respondent.

In Banc. Howell, J. McAllister, J., concurs in the result.

Howell

This is an action for assault and battery arising out of an altercation between plaintiff and the four defendants, who are members of the Klamath Indian tribe. A jury returned a verdict for plaintiff for general, special and punitive damages. The defendants appeal from the judgment entered on the verdict. We reverse and remand for a new trial.

The incident occurred on the evening of June 17, 1971, in front of a tavern in Chiloquin. Plaintiff, a timber faller and a former police officer in that city, had parked his car in front of the tavern, intending to purchase a six-pack of beer to take home. About 20

Klamath Indians, most of whom had been drinking, were milling about the street. There was evidence that the Indians were beating on the hoods of autos as if they were tom-toms, shouting obscenities about police officers, and making statements that they were going to take Chiloquin away from the whites and were also going to recover Alcatraz Island for the Indians. As the plaintiff started for the tavern to get the beer, one of the defendants offered him a drink of whiskey from his bottle. Plaintiff accepted the drink. The defendant's generosity ceased at this point, because almost immediately thereafter the plaintiff was knocked down several times and kicked by various members of the group of Indians. There was evidence that all four defendants participated in the melee.

The plaintiff alleged that he suffered various bruises and lacerations, his nose was bruised and damaged and "a pre-existing condition of said nose was aggravated," and that several teeth were loosened and damaged. After awarding general and special damages, the jury awarded plaintiff $45,000 punitive damages.*fn1

The defendants together set forth approximately 35 assignments of error. Most of the assignments involve incidents occurring during the trial or the admissibility of evidence which will probably not occur in a subsequent trial. Other assignments are completely frivolous.

We find it necessary to reverse because two jurors were improperly excused ...


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