Banks v. Shivers , 20 Utah 2d 25 ( 1967 )

HENRIOD, Justice.

Appeal from a judgment entered on a jury verdict of no cause of action in an assault and battery action. Affirmed, with costs to Shivers.

Miss Banks and Shivers were students at a Utah university. The first lived’ in a girls’ dorm on campus, — the other somewhere else. The first, a buxom girl of 18, claims that Shivers, a bonus baby weighing only 195 pounds, skillful in punching football players, member of the varsity squad, with $300,000 contract to professionalize himself with a nationally known team dedicated to thé mayhemic art of football, punched and choked her in her castle on the occasion of a chicken-fry indulged by herself, her roommate, the footballer and two other so-called friends. On very controversial evidence, the jury decided against the plaintiff and embraced the defendant’s contention in record time. A statement of the facts is made in Mr. Justice Ellett’s dissent, which statement we adopt. As related, the facts were conflicting, and the jury had the prerogative of determining who was the victor, — a determination which we cannot disturb unless clearly against the weight and credibility of the evidence, — which it wasn’t, as reflected from the record. It can be said for Miss Banks that she did not like Shivers. Hinting a little, we point out that Miss Banks had no scars, jars or mars from the strange encounter, but the behemoth, tenth-of-a-ton defendant suffered questionable damage to his groin, and considerable damage to his two lips that profusely bled all the way home.

Miss Banks says 1) : that the evidence does not support the verdict, and that 2) an instruction to the effect that “An assault is an unlawful attempt coupled with a present ability to commit an injury on the person of another” was erroneous.

As to 1) : The evidence, more than in the ordinary case, would sustain the verdict, looking at it in a light favorable to it.

As to 2) : The point on appeal attempts to make some kind of distinction between putting one in “apprehension” of harm, and putting one in “fear of harm.” Any standard, recognized dictionary, makes the two terms synonymous and the fine distinction urged by Miss Banks, based on the Restatement’s use of the word “apprehension” instead of “fear” is not impressive, and that under the particular facts of this case the instruction was not offensive. Assuming so, arguendo, we think it was not prejudicial.

CROCKETT, C. J., and CALLISTER, and TUCKETT, JJ., concur.