THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
TRIAL DIVISION
Cite as Elymore v. Walter,
9 FSM Intrm. 450 (Ponape 2000)

[9 FSM Intrm. 450]

JASON ELYMORE and AMATO ELYMORE,
Plaintiffs,

vs.

PEDRONIO WALTER,
Defendant.

CIVIL ACTION NO. 1999-025
FINDINGS OF FACT AND CONCLUSIONS OF LAW

Martin Yinug
Associate Justice

Trial:  May 30-31, 2000
Decided:  July 21, 2000

APPEARANCES:
For the Plaintiffs:        Ron Moroni, Esq.
                                     P.O. Box 1618
                                     Kolonia, Pohnpei FM 96941

For the Defendant:     Salomon Saimon, Esq.
                                     Law Offices of Saimon & Associates
                                     P.O. Box 1450
                                     Kolonia, Pohnpei FM 96941

*    *    *    *

HEADNOTES
Custom and Tradition ) Pohnpei; Torts ) Battery
     Although under Pohnpeian custom it is inappropriate for a parent, or an individual who stands in the place of a parent, to see his daughter come home late at night with a boyfriend, it is not a

[9 FSM Intrm. 451]

corollary that that person is justified under custom in inflicting a battery on the boyfriend, or damaging car he is driving.  Elymore v. Walter, 9 FSM Intrm. 450, 456 (Pon. 2000).

Custom and Tradition ) Pohnpei; Torts ) Battery
     When there was no evidence to suggest that a parent's customary privilege to discipline ran beyond the daughter to encompass her boyfriend as well, when there was no evidence to suggest that when the boyfriend dropped the daughter off he was threatening or in any other way posing a danger of physical harm to her such that the parent was entitled to inflict a battery upon the boyfriend in order to defend the daughter as he may have been obligated to do under custom, and when there was no evidence that under custom a parent could attack the car driven by the daughter's boyfriend with the baseball bat as a way of demonstrating his displeasure with the boyfriend for his role in keeping her out late, and in dropping her off under circumstances where he would see them together, Pohnpeian custom does not constitute a defense to either the battery or property damage claims.  Elymore v. Walter, 9 FSM Intrm. 450, 456 (Pon. 2000).

Torts ) Trespass
     Although under a common law ejectment theory one is privileged to exercise reasonable force to prevent an intrusion onto his property, provided that he has first requested the intruder to leave the premises, or where circumstances are such that such a request is unnecessary, such a theory would have no application to a case when he said nothing before he started hitting another's car, and the evidence was inconclusive as to whether the driveway was private property from which he would have been entitled to eject intruders.  Elymore v. Walter, 9 FSM Intrm. 450, 456 n.1 (Pon. 2000).

Torts ) Damages
     In an action for damage to personal property, the plaintiff may recover the cost of the repairs to the damaged property.  Elymore v. Walter, 9 FSM Intrm. 450, 456 (Pon. 2000).

Torts ) Damages
     When a plaintiff makes a claim for damages, he has a duty to mitigate those damages, which means that a plaintiff who has taken reasonable steps to minimize the amount of his damages may recover the amount of those expenses.  Elymore v. Walter, 9 FSM Intrm. 450, 457 (Pon. 2000).

Torts ) Damages
     As a separate item of damages, and in addition to the cost of repairs, a plaintiff is entitled to be compensated for the loss of the use of the property.  Customary rental charges are an adequate measure of damage for loss of use, and are awardable even when the plaintiff has not rented a substitute.  The period for which the rental is allowed is the reasonable time that it would take to repair the damaged property.  Elymore v. Walter, 9 FSM Intrm. 450, 457 (Pon. 2000).

Torts ) Damages
     If loss-of-use damages is measured by either rental or replacement value and if repairs take a considerable period of time, damages should be measured not on the basis of rental value or replacement cost for the entire period, and not by the aggregate of the charges by the day or week. Elymore v. Walter, 9 FSM Intrm. 450, 457 (Pon. 2000).

Torts ) Damages
     The damages for loss of use of property may not exceed the value of the property.  Elymore v. Walter, 9 FSM Intrm. 450, 457 (Pon. 2000).

[9 FSM Intrm. 452]

Torts ) Damages
     An award for a car's loss of use for a sum substantially more than the car's original price ) not to mention its value at the time of the incident ) would, in addition to the money necessary to effect the repairs, result in a windfall to the plaintiffs and is not appropriate.  Elymore v. Walter, 9 FSM Intrm. 450, 457 (Pon. 2000).

Torts ) Damages
     When ten days is a reasonable time in which to obtain auto parts and two weeks is a reasonable time in which to make repairs once the parts have arrived, and when seven days is a reasonable time in which to arrange financing for the repairs, loss of use damages will be awarded for those days.  Elymore v. Walter, 9 FSM Intrm. 450, 457-58 & n.2 (Pon. 2000).

Torts ) Assault; Torts ) Battery
     Battery is a harmful, offensive contact with a person resulting from an act intended to cause the contact, while an assault has to do with the apprehension of the offensive contact; when the court determines that a battery has occurred, it need not consider the separate tort of assault.  Elymore v. Walter, 9 FSM Intrm. 450, 458 (Pon. 2000).

Torts ) Battery
     It is enough to constitute a battery that the defendant sets a force in motion which ultimately produces the result, such as striking a glass door so that the plaintiff is hit with the fragments. Elymore v. Walter, 9 FSM Intrm. 450, 458 (Pon. 2000).

Torts ) Damages
     "Pain and suffering" includes fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal.  A plaintiff is entitled to such damages as will fully compensate him for the injuries directly flowing from the alleged tort, including physical pain and suffering as well as the mental suffering caused by the tortious act.  Elymore v. Walter, 9 FSM Intrm. 450, 458 (Pon. 2000).

Torts ) Damages
     Calculating the appropriate monetary award for pain and suffering is difficult, because such an award is not subject to precise calculation, and the matter is committed to the court's entire discretion.  The court in making an award for pain and suffering is guided by other cases in the FSM which have addressed this issue.  Elymore v. Walter, 9 FSM Intrm. 450, 459 (Pon. 2000).

Torts ) Battery; Torts ) Damages ) Punitive
     Punitive damages are awarded as a punishment to the defendant for his wrongful act and as a warning and example to deter him and others from committing similar acts in the future.  As a general rule, punitive damages are allowed for an assault and battery committed wantonly, maliciously, or under circumstances of aggravation.  Since battery usually is a matter of the worst kind of intentions, it frequently justifies punitive damages.  Elymore v. Walter, 9 FSM Intrm. 450, 459 (Pon. 2000).

Torts ) Damages ) Punitive
     Punitive damages may be awarded for tortious acts that are committed with deliberate violence, as when a defendant waits at night with a baseball bat and then repeatedly swings the bat at a car's windshield and sunroof although he never saw the driver or knew who it was and the driver never saw the defendant or got out of the car.  In such circumstances, an award of punitive damages is appropriate and the defendant, having been offended by that which he had made overt efforts to see, can scarcely be heard to complain of the offense or that the offense otherwise mitigates his conduct's consequences.  Elymore v. Walter, 9 FSM Intrm. 450, 459 (Pon. 2000).

[9 FSM Intrm. 453]

Torts ) Damages ) Punitive
     When an award of punitive damages is appropriate, materials relating to the defendant's financial status must be submitted to the court before it will enter a punitive damages award. Elymore v. Walter, 9 FSM Intrm. 450, 460 (Pon. 2000).

*    *    *    *

COURT'S OPINION
MARTIN YINUG, Associate Justice:
     The trial in this case took place on May 30 and 31, 2000.  The court has heard and considered the testimony of the plaintiffs, the defendant, and other witnesses. Admitted into evidence were plaintiffs' exhibits "A" through "K," as well as portions of the deposition of the defendant.  The court has also received and considered the parties' posttrial briefs.

     Based upon the findings of fact and conclusions of law set out below, the court awards $4,040.42 on the property damage claim, and $700.00 on the battery claim. The court also finds in favor of plaintiffs on the punitive damages claim, and will make an award after it has received the information on the defendant's financial standing that has been the subject of prior discovery by the plaintiffs, but has not previously been submitted to the court.

     As an administrative matter, plaintiffs' June 16, 2000, request for an extension of time to file written final argument is granted.  The court also notes that pursuant to the court's direction at the conclusion of the trial, the defendant was to submit to plaintiffs' counsel information regarding his financial status one week after the filing of the posttrial briefs, or June 23, 2000.

I.  Findings of Fact
     1.  Plaintiff Jason Elymore ("Jason"), 21 years old at the time of trial and who had graduated from the Pohnpei SDA School in 1998, was born in Idaho in the United States.  He does not know if he is an American citizen, but he has never taken any affirmative steps to disclaim any United States citizenship which he may have by virtue of his place of birth.  Jason holds an FSM passport, and is registered to vote in Chuuk.

     2.  Plaintiff Amato Elymore ("Amato") is Chuukese and has resided in Pohnpei for approximately 20 years.  He was born on a small island in the Mortlocks, where he also has a home.  Amato is also registered to vote in Chuuk.  Amato has worked in Pohnpei for nearly 20 years in what is now the Department of Health, Education, and Social Services of the national government, and is considered an off-island hire. Amato is married to Jane Elymore, and they have two children, Jason (the other plaintiff) and a daughter.

     3.  At about 10:00 p.m. on a night in late March or early April of 1999, Dolihner Elia, a Pohnpeian woman who was 26 years old at the time of trial (and is known as "Tikinai"), was working at the Nihco Substation, a store owned by defendant Pedronio Walter ("Pedronio") which is located near the College of Micronesia Campus in Palikir.  Tikinai is Pedronio Walter's wife's oldest sister's granddaughter, and lives at Pedronio's house in Kolonia.  Under Pohnpeian custom, Tikinai is considered as Pedronio's daughter, by virtue of Pedronio's marriage to Tikinai's great aunt.

     4.  When either Pedronio or his wife did not pick Tikinai up after work, the practice was for her to call a cab, and then call Pedronio and give him the taxi number, because she would be carrying

[9 FSM Intrm. 454]

money, the day's receipts from the store.

     5.  At about 10:00 p.m. on the night in question, Tikinai had closed the store and was preparing to leave with the day's receipts.  Jason, who had been drinking beer, drove up to the store with a friend in a car owned by his father and which his father had given Jason for his use.  He entered the outdoor bathroom, where Tikinai had just gone.  Jason had met Tikinai two nights before.  After they engaged in sex in the bathroom, she accepted Jason's offer to give her a ride home.  She did not call Pedronio to tell him what her plans were.

     6.  Pedronio called the store about 10:00 p.m., and the security guard told Pedronio that Tikinai had left with two Chuukese guys.  A friend of Jason's had come with him to the store, but left separately.  Pedronio waited about an hour, became concerned, and then called the police in an effort to locate Tikinai.  The security guard had told Pedronio on the phone that Tikinai and one of the guys were "doing something" in the restroom before they left.

     7.  Jason and Tikinai left the store together and went to the causeway where they remained until about 2:00 a.m. the following morning.  From the causeway Jason drove Tikinai home to Pedronio's house.

     8.  Sometime after 1:00 a.m. and shortly before Jason and Tikinai's arrival at Pedronio's house, Pedronio left his house with a baseball bat and went to the garage where he took a seat and waited for Tikinai's arrival.

     9.  Jason and Tikinai turned down the road to Pedronio's house, and stopped a short distance from the house.  After Tikinai had gotten out, Pedronio approached the car with a baseball bat and swung the bat into the front of the car body on the passenger side.  Then he came around to the driver's side and swung the bat approximately three times into the windshield on that side, and then two or three times into the sunroof.  Shattered glass from the blows to the windshield and sunroof flew into Jason, and cut his head and hands.  Some small pieces of glass embedded themselves in his head.

     10.  After Tikinai left the car, Pedronio's wife Epeliana came and took the day's store receipts from Tikinai.  Pedronio beat up Tikinai that same night because he was upset with her for coming home late with a male friend, and not by taxi as the usual practice would have been.

     11.  The unexpected blows to the car shocked Jason.  He did not know who was hitting the car, and Pedronio said nothing as he administered the blows.  Nor did Pedronio know the identity of the person sitting in the driver's seat of the car.

     12.  Jason reversed the car out of the driveway leading to Pedronio's house, and drove to his family's home, where upon arrival he woke up his sleeping cousins.  His aunt removed some small pieces of glass from his head.  Jason experienced pain from the cuts he received.  Stunned by the attack, he remained at home the next day and did not go to school.  On the following morning he went to the hospital with his aunt for treatment.  Embarrassed by what had happened, he did not respond to the doctor's questions when she asked what had caused his injuries.
 
     13.  At the time of the incident, Jason's parents were in Hawaii attending Jason's sister, who was receiving medical treatment.  When they returned home approximately a week after the incident, Jason's uncle immediately told them when they arrived at Pohnpei airport about what had happened.  At home later, Jason also told them what had happened.

     14.  Amato purchased the car damaged by Pedronio on December 22, 1998, so that Jason could

[9 FSM Intrm. 455]

transport himself and students living with the family to the College of Micronesia at Palikir.  He paid $4,900 for the car, a Ford-Mazda built to a U.S. standard, which had less than 80,000 miles on it at the time purchased.  To make the purchase, he and his wife Jane, who has been employed by the national government for 18 years, borrowed $10,000 from the Bank of Hawaii.  It was a three year loan, and will be paid off in 2001.  The loan payments are $441 a month.  The loan included the purchase money for the car, plus additional money for medical treatment for their daughter.  After purchasing the car, Amato spent $600 to repair or install airconditioning.  The car was in good shape at the time it was bought.

     15.  The estimated cost for the parts to repair the damage done by Pedronio is $1,925.42.  The figure is comprised of $303.45 for the windshield; $1,259.16 for the sunroof; $43.26 for the windshield molding; a crating charge of $225.00; and $114.55 for estimated freight.  Amato received the estimate from the Napa store in Pohnpei after he had checked with four automobile repair shops on Pohnpei, and discovered that they did not have the necessary parts in stock.  Labor was estimated to be an additional $700.00.  Amato was told that it would take approximately 30 days for the parts to reach Pohnpei.  Once the mechanic had the parts, it would take approximately two weeks to complete the repairs.

     16.  To order the parts required a deposit of 75% of the value of the parts, which in this case would have been approximately $1,500.  Amato did not have the money for the deposit.  Amato had two loans already, and testified that due to outstanding loans it would be impossible for him to obtain an additional loan to repair the car. He did not attempt to get such a loan.  The car has remained unrepaired, although the engine is started periodically.  The price of a rental car to replace the car is $45 a day.

     17.  Tikinai's conduct in staying out late with Jason was offensive to Pedronio. According to Pedronio, under Pohnpeian custom, it is offensive for a dating couple to be seen together by the girl's parents because the boy is not part of the family. Pedronio, who stood in the place of a father to Tikinai because of her relationship to his wife, beat Tikinai as punishment for coming home late with Jason.

     18.  The incident had a lingering depressive effect on Jason.  He experienced loss of appetite and problems sleeping.  Part of the impact of the incident on Jason was due to the fact that it was the first time in his life that an older person like Pedronio had done something so violent to him.

II.  Discussion and Conclusions of Law
     As to Amato, the complaint alleges property damage to his vehicle; as to Jason, the complaint alleges assault and battery.  The complaint also seeks punitive damages under the claims of both Amato and Jason.  Before addressing the specific claims, the court speaks to the issue of Pohnpeian custom as raised at trial.

A.  Pohnpeian custom
     Defendant presented testimony that under Pohnpeian custom, it is inappropriate for a parent ) or as in this case an individual like Pedronio who stood in the place of a parent to Tikinai ) to see his daughter come home late at night with a boyfriend. Under Pohnpeian custom, a dating couple is not to be seen together by a girl's family.  Pedronio's wife Epeliana testified that in her family, her sister would permit her to spank her sister's children if they did something wrong, such as violate the custom at issue here, and that conversely she would also permit her sister to spank her children if they committed such an infraction.  Epeliana did not specifically say whether this understanding with her

[9 FSM Intrm. 456]

sister also included Tikinai, who is her oldest sister's granddaughter.  Any authority that Epeliana had to discipline Tikinai passed to Pedronio as her husband, who is considered Tikinai's father under custom.  Further, defendant's counsel argued during the course of the trial that Pedronio had the obligation to protect Tikinai because of this relationship.  For this case, the court will assume, without expressly finding, that this accurately represents the state of Pohnpeian custom.  However, it is not a corollary of that assumption that Pedronio was justified under custom in inflicting a battery on Jason, or damaging Amato's car.

     There was no testimony that under Pohnpeian custom Pedronio was privileged to discipline Jason for his role in keeping the now 26-year-old Tikinai out late, or for allowing himself and Tikinai to be seen together as a dating couple by Pedronio. Pedronio was not related to Jason, and assuming that Pedronio was justified under custom in punishing Tikinai for her part in the conduct, there was no evidence to suggest that the privilege ran beyond Tikinai to encompass Jason as well.  Nor was there any evidence to suggest that when Jason dropped Tikinai off, he was threatening or in any other way posing a danger of physical harm to Tikinai such that Pedronio was entitled to inflict a battery upon Jason in order to defend Tikinai as he may have been obligated to do under custom.  Meitou v. Uwera, 5 FSM Intrm. 139, 143 (Chk. S. Ct. Tr. 1991) (in a battery case, defendant will not be found liable for damages resulting from the battery if he was in some way privileged to inflict the harmful contact).  Similarly, there was no evidence that under custom Pedronio could attack the car driven by Jason with the baseball bat as a way of demonstrating his displeasure with Jason for his role in keeping Tikinai out late, and in dropping her off at Pedronio's house under circumstances where Pedronio would see them together.1

     Accordingly, Pohnpeian custom does not constitute a defense to either the battery or property damage claims.

B.  Property damage
     For damages under their claim for property damage, plaintiffs are seeking both the costs of repair, as well as an amount to compensate them for the time that they were without the use of the vehicle.

     1.  Costs of repair
     Pedronio intentionally beat the car with a baseball bat causing significant damage to it, and is without a defense to his actions.  In an action for damage to personal property, the plaintiff may recover the cost of the repairs to the damaged property.  22 Am. Jur. 2d Damages 445 (1988).  Amato testified that the total repair costs were estimated to be $1,945.42 for parts, plus $700.00 for labor, totally $2,645.42.  Pedronio is liable for this sum.

[9 FSM Intrm. 457]

     2.  Loss of use
     A less straightforward issue is presented by the claim for the loss sustained by being deprived of the use of the car.  Amato did not have the money to order the parts or pay for the repairs, and as a result, the car has remained unused, although the engine is occasionally started, from the time of the incident until the present. Amato testified that it was "impossible" for him to get a loan to fix the car because he already had two outstanding loans, one of them being the $10,000 loan that he had obtained to finance the purchase of the vehicle.  Amato also testified that he received an estimate of $45 a day for a rental car to replace the damaged vehicle. He was told by Napa that it would take 30 days for the parts to arrive, and that once the mechanic had the parts, it would take two weeks to repair the car.

     Where a plaintiff makes a claim for damages, he has a duty to mitigate those damages, which means that a plaintiff who has taken reasonable steps to minimize the amount of his damages may recover the amount of those expenses. Id. 495. As a separate item of damages, and in addition to the cost of repairs, a plaintiff is entitled to be compensated for the loss of the use of the property.  Id. 445. Customary rental charges are an adequate measure of damage for loss of use, and are awardable even where the plaintiff has not rented a substitute, which is the case here.  Id. 447.  The period for which the rental is allowed is the reasonable time that it would take to repair the damaged property.  Id. 449.

If loss-of-use damages is measured by either rental or replacement value and if repairs take a considerable period of time, damages should be measured not on the basis of rental value or replacement cost for the entire period, and not by the aggregate of the charges by the day or week.

Id. 450 (footnote omitted).  In other words, if repairs take a month, then the rental value for the replacement would be the monthly rental charge for a replacement, not a daily charge.  Finally, "there is authority that the damages for loss of use may not exceed the value of the property."  Id. 443.

     Plaintiffs suggest the sum of $8,560.87, or more than 150% of the original cost of the car plus the airconditioning, as an appropriate figure for loss of use.  Final Argument at 12.  This is comprised of $1,350.00 for 30 days for ordering the parts (30 X $45 per day); $630 for the two week repair period (14 X $45 per day); and $6,030.00 for the 90 days to raise the money for repairs (90 X $45 per day).  On this point, plaintiffs "submit that 90 days would have been a reasonable time for Mr. Elymore to raise this money."  Id.  On the facts before it, the court is not convinced that an award for loss of use based on such a lengthy period is appropriate.  An award of a sum substantially more than the original price of the car ) not to mention its value at the time of the incident ) would, in addition to the money necessary to effect the repairs, result in a windfall to the plaintiffs.  The court considers the parts of the claim for loss of use in turn.

     a.  The time necessary to obtain the parts
     Shipments to Micronesia are routinely accomplished on an expedited basis, such as air freight.  While the freight charge listed in the Napa estimate, plaintiffs' exhibit "K," was $114.55, there is no indication whether that is for air or surface delivery. The court concludes that ten days, or $450 (10 X $45) is a reasonable time to obtain the parts.

     b.  The time necessary to make the repairs
     The court agrees with the plaintiffs that two weeks was a reasonable time to make the repairs

[9 FSM Intrm. 458]

once the parts had arrived on island.  Plaintiff's mechanic, Sato Bongdan, testified that this was the time required.  The court awards an additional $630 (14 X $45).

     c.  The time necessary to obtain financing
     The court is not convinced that 90 days, as plaintiffs contend, would have been necessary to obtain financing for the repairs.  Plaintiffs "submit" at page 12 of their Final Argument that this constitutes a reasonable time, but no evidence supports the contention that this would have been the actual time required.  Amato testified that it was "impossible" for him to obtain a further loan; yet he also testified that he did not try.  Amato and his wife Jane were able to obtain a substantial loan of $10,000, part of the proceeds of which were used to purchase the car, and are now in the process of retiring that loan over the relatively short period of three years.  They have both worked for the national government for nearly 20 years ) Amato for 19, and his wife Jane for 18 ) and are responsible people who appear to be eminently credit-worthy. Also, Jason although a full-time student, had the benefit of the use of the car, and it was certainly in his interest to make contributions toward the repairs through employment or otherwise.  The court concludes that between the three of them, a financing program for the $2,645.42 cost of the repairs could have been in place within a week of the incident.  The court awards $315 (7 X $45) for the time necessary to get a such a program in place.2

     Summarizing, for loss of use the court awards $1,395.  Had expenses actually been incurred to obtain substitute transportation, then the court would make the award in favor of the one actually incurring the expenses.  However, since this is not the case, the court awards $1,395 to Jason, for whose benefit the car was purchased, and who was deprived of the use of the vehicle.  The total award for property damage is therefore $4,020.42 ($2,645.42 + $1,395).

C.  Jason's assault and battery claim
     Jason brings a claim for assault and battery for the cuts he suffered from the shattering glass.  Battery is a harmful, offensive contact with a person resulting from an act intended to cause the contact, while an assault has to do with the apprehension of the offensive contact; when the court determines that a battery has occurred, it need not consider the separate tort of assault.  Conrad v. Kolonia Town, 8 FSM Intrm. 183, 191 (Pon. 1997).  Further, "it is enough [to constitute a battery] that the defendant sets a force in motion which ultimately produces the result," such as striking a glass door so that the plaintiff is hit with the fragments. William J. Prosser, Law of Torts 35 n.62 (4th ed. 1971) (citing Schmitt v. Kurrus, 85 N.E. 261, 234 Ill. 578 (1908)).  Pedronio committed the tort of battery when he swung the baseball bat into the driver's side windshield and sunroof, causing Jason, who was seated in the driver's seat, to be cut by the shattering glass.  Just as Pedronio has not demonstrated that he was privileged to damage the vehicle, he has also failed to demonstrate that he was privileged to inflict the battery on Jason.  Meitou, 5 FSM Intrm. at 143.

     "Pain and suffering" includes "`fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal.'"  Ludwig v. Mailo, 5 FSM Intrm. 256, 262 (Chk. S. Ct. Tr. 1992) (citing 22 Am. Jur. 2d Damages 240.  Jason is entitled to "such damages as willfully compensate him for the injuries directly flowing from the alleged tort," including physical pain and suffering as well as the "mental suffering caused by the tortious act."  6 Am. Jur. 2d Assault and Battery 181, 183 (1963).

[9 FSM Intrm. 459]

     The shattered glass falling on Jason resulted in superficial cuts to his hands and head.  He was still able to drive from the scene, and he did not find it necessary to seek professional medical attention until the second day after the incident. Nevertheless, some degree of physical pain was necessarily attendant upon the injuries.  The greater injury to Jason was not the physical injury, but the suffering associated with the shock and affront to his personal dignity resulting from Pedronio's repeated, unexpected baseball bat blows into the windshield, which came unexpectedly out of the night.  Pedronio's unjustified and violent conduct had a substantial traumatic effect on Jason, for which he is entitled to compensation.

     Calculating the appropriate monetary award for pain and suffering is difficult, because such an award is not subject to precise calculation, and the matter is committed to the court's entire discretion.  Asher v. Kosrae, 8 FSM Intrm. 443, 453-54 (Kos. S. Ct. Tr. 1998).  The court in making the award in this case for pain and suffering is guided by other cases in the FSM which have addressed this issue. See, e.g., Conrad v. Kolonia Town, 8 FSM Intrm. 183 (Pon. 1997) (awarding pain and suffering of $1,377.68 for a broken leg suffered as a result plaintiff's resisting arrest, but where police used greater force than necessary to effect the arrest; case also involved claims under the FSM civil rights statute, 11 F.S.M.C. 701); Plais v. Panuelo, 5 FSM Intrm. 179, 185 (Pon. 1991) (awarding $300 as pain and suffering where defendant put out his cigarette by grinding it into plaintiff's bare back; $3,500 as compensatory damages for "serious and substantial beatings" involving kicks with steel-tipped safety shoes; case also, like Conrad, involves civil rights claims under 11 F.S.M.C. 701); Meitou v. Uwera, 5 FSM Intrm. 139 (Chk. S. Ct. Tr. 1991) (awarding pain and suffering in the amount of $800 where plaintiff was beaten unconscious, and suffered bleeding, bruises, and swelling to the face).  Although Jason's physical injuries were minor, there was substantial emotional trauma.  The court awards Jason $700.00 for pain and suffering in this case.

D.  The punitive damages claim
[P]unitive damages are awarded as a punishment to the defendant for his wrongful act and as a warning and example to deter him and others from committing similar acts in the future.  . . . As a general rule, punitive damages are allowed for an assault and battery committed wantonly, maliciously, or under circumstances of aggravation.  The doctrine of punitive damages is peculiarly applicable to actions for assault and battery.

6 Am. Jur. 2d Assault and Battery 186 (1963) (footnotes omitted).  "Since battery usually is a matter of the worst kind of intentions, it is a tort which frequently justifies punitive damages."  Prosser, supra, at 35.  Punitive damages may be awarded for tortious acts that are committed with "deliberate violence," Primo v. Refalopei, 7 FSM Intrm. 423, 435 (Pon. 1996), and that is the case here.  A punitive award is therefore appropriate.  Pedronio was waiting for Jason and Tikinai with the baseball bat at hand, and once they arrived, he swung the bat repeatedly into the windshield right in front of Jason and onto the sunroof above him.  Until Jason regained enough presence of mind to take the reasonable step that he did of reversing the car out of the driveway and leaving the scene, Pedronio had the advantage of Jason as cornered victim trapped inside the car. In this regard, Pedronio's actions when he damaged Amato's car and inflicted the battery upon Jason was determinedly calculating and violent.  Moreover, it was nighttime; Jason never got out of the car; and Pedronio did not know who it was who was driving the car.  Assuming that it is offensive under Pohnpeian custom for a dating couple to be seen together by the girl's family, it remains the case that Pedronio could only speculate that the driver of the car was the same man with whom Tikinai left the Nihco Substation.  By waiting for Tikinai's arrival, and then by going up to the car where he could see Jason, Pedronio was courting any offense under custom that he might experience by seeing Jason and Tikinai together. Having been offended by that which he had made overt efforts to see, he can scarcely be heard to complain of the offense, or be heard to say that the offense mitigates the consequences of his otherwise violent and

[9 FSM Intrm. 460]

inexcusable conduct.  An award of punitive damages is appropriate.

     Plaintiffs' counsel, who is in possession of discovery materials relating defendant's financial status, will submit those materials to the court by August 7, 2000.  The court will then enter an award of punitive damages under both the battery and property damage claims.  A judgment encompassing the awards on all claims, including the punitive damages award, will issue at that time.
 
 
Footnotes:
 
1.  In their posttrial brief, the Elymores ) as opposed to the defendant ) also discuss common law ejectment.  Under such a theory, one is privileged to exercise reasonable force to prevent an intrusion onto his property, provided that he has first requested the intruder to leave the premises, or where circumstances are such that such a request is unnecessary.  6 Am. Jur. 2d Assault and Battery 167 (1963).  Pedronio said nothing to Jason before he started hitting the car, and the court finds that ejectment has no application to this case.  Further, the evidence was inconclusive as to whether the driveway leading to Pedronio's house was private property from which he would have been entitled to eject intruders.

2.  The Elymores should not to be penalized for being responsible people.  Regardless of their credit standing, reasonableness would remain the benchmark in determining an appropriate length of time for arranging financing.
 
                                                                                                                                                                                                                                                                                                           
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