46 Ind. App. 269 | Ind. Ct. App. | 1910
Appellee brought this action for damages against appellant, who was in the saloon business in the city
The cause was put at issue, trial had, and verdict returned for $482, on which judgment was rendered. Motion for a new trial was made and overruled.
The only error assigned and relied on is the overruli|ig of the motion for a new trial.
The facts in this case are substantially as follows: Appellant lived with his family on the' second floor of the building in which was located his saloon. He was the owner of a large eat, which he kept about his place of business and home' for the purpose of protecting his property and as a pet for his wife and children. Appellant was the owner of a saloon in which, on Sunday, June 3, 1906, he was engaged in selling intoxicating liquors. On the day aforesaid, appellee, a resident of the city of Fort "Wayne, went to appellant’s saloon, accompanied by his dog. Upon entering the room, the dog saw the cat lying on a chair or table, and attacked it, driving it under a railing which was around the bar. Appellant thereupon warned appellee to keep his dog from attacking the cat. It was claimed by appellant that the appellee did not heed the warning, but kicked the cat out into the room,
“(3) If you believe from the evidence that defendant struck plaintiff, as alleged in the complaint, and that defendant so doing fancied without reason that plaintiff was going to do himself or his property substantial harm, but that, in fact, plaintiff was not doing defendant or his property any harm, and was not making any such threats to injure defendant or his property as would justify defendant in making the assault complained of upon plaintiff, then your verdict should be for plaintiff.
“(4) If you find from the evidence that plaintiff was endeavoring to rid himself of defendant’s cat, and that in so doing he was using only such reasonable force as, under all the circumstances, he was justified in using, and that plaintiff was not threatening to do any harm to defendant or his property, and that defendant struck plaintiff and broke the bones of his jaw, you will be justified in finding a verdict for plaintiff. ’ ’
These objections are urged upon the ground that a man
The third instruction, tendered by appellant and given by the court, is as follows: “Under the law a man has a perfect right to defend his property, while in possession thereof, by any degree of force short of taking life, if from appearances he reasonably believes or it is actually necessary to make his defense effectual, and if the aggressor be injured by the owner of said property in his effort to protect it from injury no damages can be recovered by the aggressor for the injury thus inflicted, because the law gives to every citizen a perfect right to defend not only his own person but also his property. ’ ’ A number of other instructions given by the court are of the same purport. Appellee tendered nine instructions, of which eight were given. Appellant tendered fifteen, of which fourteen were given.
What we have said as to instructions three and four is applicable to the objections urged against instructions five and eight.
The recovery in this case — $482—shows very clearly that the jury waS not misled by any instructions or by the evidence admitted over appellant’s objections. Nor does it
The right result was reached, and no error intervened which warrants us in disturbing the judgment.
Judgment affirmed.