                                  No. 12748

          I N THE SUPREME C U T O THE STATE O M N A A
                           OR    F           F OTN



RICKY HOLLAND, a minor, by h i s Guardian
ad l i t e m , C R L HOLLAND,
                OA

                           P l a i n t i f f and Respondent,



RALPH BIGGS, CALVIN BIGGS, and DENNIS
BIGGS ,

                           Defendants and A p p e l l a n t s .



Appeal from:    D i s t r i c t Court o f Eighteenth J u d i c i a l D i s t r i c t ,
                Honorable W. W. L e s s l e y , Judge p r e s i d i n g .

Counsel of Record :

     For Appellants :

            Morrow, Nash and Sedivy, Bozeman, Montana
            James H. Morrow argued and Edmund P. Sedivy
             argued, Bozeman, Montana

     For Respondent:

            Landoe and Gary, Bozeman, Montana
            Joseph B. Gary argued, Bozeman, Montana



                                              Submitted:      /im   9,   lq75
                                                             I'
                                                 Decided: fr.9      2 6 ?c-j
Filed :           -   .,
Mr.    J u s t i c e Frank I . Haswell d e l i v e r e d t h e Opinion of t h e C o u r t .


             I n a n a c t i o n f o r damages f o r a s s a u l t , t h e j u r y r e t u r n e d

a v e r d i c t f o r p l a i n t i f f i n t h e amount of $7,600 and judgment
w a s entered thereon.               Defendants a p p e a l from t h e judgment and

d e n i a l of t h e i r m o t i o n s f o r a new t r i a l , f o r judgment n o t w i t h -

s t a n d i n g t h e v e r d i c t , and f o r a l t e r a t i o n o f t h e judgment.
             P l a i n t i f f i s Ricky H o l l a n d , a g e 17 a t t h e t i m e of t h e

alleged assault.              Defendants a r e Ralph Biggs, a g e 7 0 , t h e owner

o f t h e farm l a n d on which t h e a l l e g e d a s s a u l t o c c u r r e d ; and h i s

two s o n s , Dennis, a g e 23, and C a l v i n , a g e 22.

             On October 22, 1972, p l a i n t i f f was h u n t i n g i n t h e h i l l s

n o r t h of B e l g r a d e , Montana, w i t h two companions, Roger Branden-

b u r g e r , a g e 1 7 , and Randy Simonson, a g e 1 8 .                   That morning t h e

boys had s e c u r e d p e r m i s s i o n from a r a n c h e r t o hunt on h i s prop-

e r t y b u t , e i t h e r d e l i b e r a t e l y o r i n a d v e r t e n t l y , t h e y had e n t e r e d

l a n d s owned by d e f e n d a n t Ralph Biggs.                 The boys s p l i t up t o h u n t ,

w i t h Brandenburger and Simonson h u n t i n g t h e lower ground and p l a i n -

t i f f Holland h u n t i n g h i g h e r up.

             Defendants f i r s t e n c o u n t e r e d Brandenburger and Simonson,

o r d e r i n g them o f f t h e p r o p e r t y .      I n s p i t e of t h e b o y s ' a p o l o g i e s ,

d e f e n d a n t Ralph Biggs a l l e g e d l y h a r a s s e d them and u l t i m a t e l y s t r u c k

Simonson w i t h h i s c a n e o r a " c l u b " , a c c o r d i n g t o d i f f e r e n t v e r s i o n s

of t h e i n c i d e n t .    A s Brandenburger and Simonson l e f t t h e Biggs

p r o p e r t y , d e f e n d a n t s went i n s e a r c h of p l a i n t i f f Holland and found

him.
             The e v e n t s which f o l l o w e d a r e t h e b a s i s of t h i s s u i t .
P l a i n t i f f c l a i m e d he was a t t a c k e d and b e a t e n by d e f e n d a n t s , w i t h -
o u t warning o r p r o v o c a t i o n .        Defendants contended p l a i n t i f f t h r e a t -
ened d e f e n d a n t Ralph Biggs w i t h a p i s t o l when a r e q u e s t was made

f o r him t o l e a v e B i g g s ' p r o p e r t y .      According t o d e f e n d a n t s , Dennis

Biggs l i g h t l y backhanded p l a i n t i f f when he saw h i s f a t h e r t h r e a t -

ened by p l a i n t i f f ' s drawn p i s t o l .
                                               - 2 -
             I n December 1 9 7 2 , p l a i n t i f f , t h r o u g h h i s mother a s

g u a r d i a n ad l i t e m , f i l e d s u i t i n t h e d i s t r i c t c o u r t , G a l l a t i n

County.        The c a u s e came on f o r t r i a l i n J a n u a r y 1974 and t h e

j u r y r e t u r n e d a v e r d i c t awarding:         $200 compensatory damages

a g a i n s t e a c h d e f e n d a n t ; $5,000 p u n i t i v e d a n a g e s a g a i n s t de-

f e n d a n t Ralph Biggs; $1,000 p u n i t i v e damages a g a i n s t d e f e n d a n t

C a l v i n Biggs; and $1,000 p u n i t i v e damages a g a i n s t d e f e n d a n t

Dennis Biggs.           A l l t h r e e d e f e n d a n t s a p p e a l from t h e judgment

e n t e r e d on t h i s v e r d i c t and from d e n i a l of t h e i r p o s t - t r i a l

m o t i o n s f o r r e l i e f from t h e judgment.

             Two i s s u e s a r e p r e s e n t e d on a p p e a l :

              (1) Was t h e a d m i s s i o n of t e s t i m o n y c o n c e r n i n g p r e v i o u s
assaults reversible error?

              (2)    Was t h e damage award e x c e s s i v e ?

             The f i r s t i s s u e i n v o l v e s two a l l e g e d p r i o r a s s a u l t s :

(1) t h e a l l e g e d a s s a u l t on Randy Simonson a few m i n u t e s p r i o r t o

t h e i n c i d e n t forming t h e b a s i s of t h e p r e s e n t s u i t , and ( 2 ) an

a l l e g e d a s s a u l t by d e f e n d a n t Ralph Biggs on a n o t h e r h u n t e r ,

L e s t e r Covey, i n t h e f a l l of 1960.

             Immediately p r i o r t o t r i a l , d e f e n d a n t s made t h i s motion:

             "The Defendants h e r e i n move t h i s C o u r t i n l i m i n e ,
             t o o r d e r t h e P l a i n t i f f t o r e f r a i n from a l l u d i n g
             t o o r a s k i n g q u e s t i o n s a b o u t [ t h e a l l e g e d Simonson
             a s s a u l t ] , o r any o t h e r i n c i d e n t i n v o l v i n g a n
             a l l e g a t i o n of a s s a u l t o r b a t t e r y , a l l e g e d l y
             committed by one o r a l l of t h e Defendants upon any
             o t h e r p e r s o n p r i o r t o t h e d a t e of t h e a l l e g e d
             i n c i d e n t h e r e i n * * *.'I      ( B r a c k e t e d words p a r a -
             phrased. )

The d i s t r i c t c o u r t d e n i e d t h e motion a s t o t h e a l l e g e d Simonson

a s s a u l t , b u t g r a n t e d i t a s t o any o t h e r a l l e g e d a s s a u l t .     Ad-

m i s s i b i l i t y f o r impeachment p u r p o s e s was r e s e r v e d f o r l a t e r r u l -

ing a t the trial.

             The d i s t r i c t c o u r t ' s r u l i n g a d m i t t i n g e v i d e n c e of t h e

a l l e g e d Simonson a s s a u l t was c o r r e c t .         The e v i d e n c e was a d m i s s i b l e
to show the sequence of events leading up to the assault sued
upon; to show defendants1 state of mind upon encountering
plaintiff Holland; and as evidence of malice supporting an award
of punitive damages for the alleged assault on plaintiff.
         As a general rule, evidence of prior assaults is inad-
missible in a trial of a civil action for assault.   Gunderson v.
Brewster, 154 Mont. 405, 466 P.2d 589; 6 Am Jur 2d, Assault and
Battery S217 and cases cited therein.    A recognized exception to

this rule, applicable in the instant case, is expressed in the
Annotation, 66 ALR2d 806, 826:
         "When to omit such evidence would impair the
         jury's understanding of the circumstances surround-
         ing the assault sued upon, evidence of similar
         assaults or acts upon other persons has generally
         been held admissible by the courts treating the
         question."
Here, the events involving the alleged assault on Simonson ex-
plain the circumstances surrounding the alleged assault on plain-
tiff.   More particularly they explain the frame of mind of defend-
ants immediately prior to the alleged assault on plaintiff.     The
circumstances also furnish evidence of malice supporting an award
of punitive damages, another recognized exception to the general
rule of inadmissibility. Annotation 66 ALR2d 806, 816; 1 Jones
on Evidence, 6th Ed. S4:12.
         The prior assault by defendant Ralph Biggs on hunter
Lester Covey was admitted under different circumstances.    During
plaintiff's case-in-chief, plaintiff's witness Roger Brandenburger
testified that defendant Ralph Biggs, in the course of his threats
to Brandenburger and Simonson preceding the alleged Simonson

assault, made the following statement:
         ''He walked up to Randy, and said that he ought
         to beat us within an inch of our lives, because
         he said   --well, he said a guy had trespassed
         before, and he pointed up the hill, and he said
         'I beat a guy within an inch of his life one
               .
         time "I
          Thereafter in defendants1 case-in-chief, defendant
Calvin Biggs on direct examination by defense counsel denied
that the statement concerning beating a prior trespasser had
been made by anyone.         On cross-examination by plaintiff's
counsel he reaffirmed this denial.          Calvin was then asked by
plaintiff's counsel:
          "Have you or your father ever beat the hell out of
          anybody else?"
Defendants' counsel objected that this was incompetent, irrelevant
and immaterial, but his objection was overruled.              Calvin then
answered "No".
          These questions and answers followed:
          "Q.   Has your father?     A.   No.
          "Q.   Ever?   A.    No.
          Q .   You know that for a fact?       A.    Yes".
          In rebuttal, plaintiff called Lester Covey as a witness.
He testified that he had been the victim of a beating at the
hands of Ralph Biggs and his hired man in the fall of 1960.             This
alleged assault occurred when hunters were discovered on Biggs'
property without his permission.          Defendants made strenuous and
lengthy    objection to the admission of this testimony, but tne
district court permitted its introduction, apparently as impeach-
ment testimony.
          We hold the district court erred in permitting the initial
question to Calvin Biggs concerning whether he or his father had
ever beaten the hell out of anybody else.            This question is ir-
relevant to the assault on plaintiff.           It does not impeach Calvin,
the witness.    It does not prove whether Ralph Biggs made the
statement to Brandenburger or Simonson.           It is simply an effort
to impeach the statement of defendant Ralph Biggs on a collateral
matter during cross-examination.
           Tne reason for the rule prohibiting cross-examination
of a witness on collateral matters has been stated in 4 Jones
on Evidence, 6th Ed., 525:!3, pp. 131, 132:
        "Any other rule would lead to the trial of innum-
        erable side issues and distract the attention of
        the jury from the real questions being tried; and
        witnesses would be subjected to the unjust necessity
        of being able to produce evidence to corroborate
        their statements on these collateral matters. The
        test for determining whether a matter is relevant
        on cross-examination has been said to be: Would
        the cross-examining party be entitled to prove it
        as a part of his case in chief?"
        These Montana cases support the rule that a witness can-
not be impeached by contradicting him on collateral matters:
State v. McConville, 64 Mont. 302, 209 P. 987; State v. Deeds, 126
Mont. 38, 243 P.2d 314.
        Having thus erred in permitting the initial question
and answer, the error was compounded by permitting plaintiff on
rebuttal to introduce testimony through Lester Covey contradict-
ing defendant Calvin Biggs' response to the improper question.
Evidence by way of impeachment is improper on a point not properly
in evidence.    Garrison v. Trowbridge, 119 Mont. 505, 177 P.2d
464; State v. Mott, 72 Mont. 306, 233 P. 602.    Here the trial got
far afield of the issues in the case by becoming entangled in an
alleged assault that occurred 12 years before the assault sued upon.
        The prejudicial effect of this inadmissible testimony is
obvious.    Accordingly, its admission constitutes reversible error.
        This holding renders consideration of the issue of excessive
damages unnecessary.
        The judgment is vacated and the cause is remanded to the
district court for a new trial.


                                                 Justice
      We concur:




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        Justices   /
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