164 N.W. 729 | N.D. | 1917
Lead Opinion
This is an action to recover damages for a grave and unprovoked assault and battery. On evidence showing the guilt of each defendant beyond a reasonable doubt, the jury found a verdict against them. From the judgment they appeal to this court and assign about eighty errors, based on objections and exceptions. To nearly every simple question the counsel has appended needless objections and exceptions or motions to strike. But such objections and exceptions are not a legal tender, and are no cause for vacating a verdict and judgment based on clear and convincing evidence. When a party commits a brutal and unprovoked assault and battery, it is folly to think of paying off and making a settlement by any number of legal quibbles. The only real question is, Has the defendant had a fair trial and is the verdict well sustained by the evidence ?
The plaintiff is an attorney of Jamestown, and at the time of the assault he was on the farm of Andrew Neva hooking and superintending proceedings of a friendly chattel-mortgage sale. The defendants are related. They went together and sought an opportunity to insult and quarrel with the plaintiff. He is not a fighter. He had no officer present at the sale to protect him, and he tried to avoid a quarrel, and said he did not want any trouble with them. When his eyes were turned away, Peter Neva struck him a violent blow on the mouth, breaking out two of his front teeth. The parties clinched and in the struggle Peter fell or was brought to the ground. The plaintiff let him up on demand of the other defendants. Plaintiff then started for his car, and was about to enter it when Peter Neva struck him a violent blow on the nose, fracturing the bone. The other defendants stood by and urged Peter to go after him. Peter was arrested and brought before a justice of the peace. He pleaded guilty and paid a fine of $25. On the trial in 'district court there was a question con
Plaintiff testifies: “I went to the door of the barn to see the cattle, and he stepped up to me and said ‘When are you sons of bitches going to pay my mortgage?’ The other defendants were standing by him. Then Joe Koenig came out of the barn and walked around in front of me, and walked directly up against me, and said: ‘Oh! Excuse me; I did not see you.’ In two or three minutes later he came back from the barn and again bumped against me from the back. Then he said: ‘Excuse me; I did not see you.’ And the other defendants smiled. They watched and laughed. He used the words ‘sons of bitches’ about continuously for about two hours prior to the close of the sale. At the close of the sale, when most of the people had gone home, defendants came up and stood around. Finally, Peter stepped up and said: ‘Do you know what I would do if you sons of bitches were foreclosing a mortgage on my farm ?’ He said, ‘I would like to see you sell the stuff that I had a mortgage on you cowardly sons of bitch.’ I turned my eye from him a moment. He drew back and struck me across the mouth. The blow broke out these teeth (his two front teeth). He struck me again, and I warded off the blow and grabbed hold of his arm and shoulder and pushed him back. He kicked me with his right foot on the abdomen, and John Neva and Joe Koenig said at this time: ‘Go after the son of a bitch; go after him.’ He continued trying to
Bonhus was at the sale and fully corroborates the plaintiff, and he testifies that the other defendants made no effort to rescue Carr from Pete; they said, “Co after him Pete.” I heard Koenig’s voice say: “The son of a bitch.” They urged him on. John Neva hollered: “Give him another one, Pete.” So Pete came over and struck him again.
Dr. Gerrish examined and treated Carr the morning after he was injured. He testifies that Carr’s mouth and lips were cut in two or three places and very badly swollen. He had two front teeth broken out or off. He had a broken nose right along the side. He had a black eye. The doctor saw him once or twice every day for two weeks, and thinks the fracture of the nose is a permanent affliction. The doctor’s bill was seventy-five or a hundred dollars.
Dentist Reardon testifies that on examination of the plaintiff he found two front teeth broken off the upper jaw and the gums were badly bruised.
Hammerstaedt, the auctioneer, well corroborates the plaintiff’s testimony.
Theodore Anderson saw the conflict, and he saw Neva strike Carr.
John Neva testified thus: “I said little brother go to him. Go to the son of a bitch.” (197.)
No person can read over the testimony without being satisfied that the verdict is just and in moderation. Indeed, it should have been for a much larger sum.
As a counterclaim Peter Neva by answer averred that he was damaged to the amount of $1,000, by injury received in the scuffle with Carr. To this there was a demurrer, which was sustained by an oral ruling, and the parties went to trial. • The ruling is of no consequence. The parties went to trial, and were given ample opportunity to prove all the facts and circumstances in regard to the matter of dispute, and the testimony shows beyond all question that the defendants were the
Dissenting Opinion
(dissenting). The appeal in this case is in a very complicated condition. There are many irregularities in the same, making it exceedingly difficult for this court to give proper consideration to all the questions presented in the appeal. It would seem that matters coming before the supreme court should be so presented to this court in the proceedings concerning appeals that it would not be necessary for the court to strain statutes relative to appeals in order to reach the consideration of the merits of the questions presented on appeal.
The first matter under consideration is a demurrer to the counterclaim pleaded in the answer of Peter Neva, one of the defendants. The order sustaining such demurrer was made on the 20th day of December, 1915, in open court, in the course of the preliminary part of the trial. After the trial of such action the defendant Peter Neva appealed from such order allowing such demurrer, to the supreme court, serving notice of such appeal, and an undertaking in the sum of $250. Afterwards an appeal was taken from the judgment in said action, and a proper notice of appeal and undertaking also perfected therein. The defendant also undertook to appeal from the order denying motion for judgment non obstante and the order denying motion for a new trial, but did not mention such orders in his undertaking in the appeal from the judgment. There is therefore no appeal from such orders. Sucker State Drill Co. v. Brock & Richardson, 18 N. D. 598, 120 N. W. 757. In that case this court said: “On an appeal from both a final judgment and from an order denying a new trial but one undertaking is required to perfect such appeals. . . . Such undertaking must refer to each of the appeals, and if it merely recites the
We have seen that from the failure to mention the appeals from such orders in the undertaking, such appeals are ineffectual. We have also seen that in the appeal from the judgment no new specifications of error were served, but the specifications of error served in the two motions were referred to and made the specifications of error in the appeal from the judgment.
We will for the purpose of disposing of this case consider that the specifications of error served with such motions are the specifications of error in the appeal from the judgment, but in doing this we do not uphold that such method of considering specifications of error can be allowed as a general rule, but that such procedure is taken in order to find some way to consider the matters involved in the appeal. Section 1656, Compiled Laws of 1913, says in plain language what shall be done with reference to serving statement of errors of law complained of, and it would seem that the language and meaning thereof is so plain that it could hardly be misunderstood. The procedure therein provided for should have been followed.
Referring now to the demurrer, we will consider the merits thereof in connection with and as a part of all the other matters appealed
It is a general rule, however, that one tort cannot be counterclaimed against another unless the tort counterclaimed arose out of the same transaction or is connected with the subject-matter of the action. In the case at bar there is no doubt but that the tort sought to be counterclaimed arose out of the same transaction. It was directly connected with the subject-matter of the action. It-is a proper subject, therefore, of counterclaim. The plaintiff’s cause of action is based upon injuries which he claims defendant inflicted upon him in an assault and battery, and the defendant sets up counterclaim for damages claimed to have resulted by reason of injuries inflicted upon him by the plaintiff in the same assault and battery occurring at the same time in one transaction. If the claim for damages by plaintiff against the defendant, and the claim for damages by the defendant against the plaintiff, are logically related so as to show that they arose out of the same transaction, that is, in this case, the same general fight or fracas, there would seem to be no doubt but that the one tort might be counterclaimed against the other. Gutzman v. Clancy, 114 Wis. 589, 58 L.R.A. 744, 90 N. W. 1081.
The purpose of the statutes allowing counterclaim in favor of the ■defendant against the plaintiff, arising out of the same transaction or connected with the same subject-matter, is to allow parties to the same suit to settle in such suit as far as convenient and practicable all controversies arising out of the same transaction set forth in the complaint. Pelton v. Powell, 96 Wis. 473, 71 N. W. 887. The word “transaction” where used in a statute providing that counterclaim may be interposed when arising out of the same transaction set forth in the
There are seventy-six errors assigned in this record, and they are-in no manner grouped, and to consider each error would mean an opinion long enough to make up very nearly one of the North Dakota Reports. We will consider, therefore, but a few of the remaining errors in disposing of this case.
Concerning assignments of error Nos. 15, 16, 17, 18, 19, 20, 21, 22, and 23, all of which relate mostly to the reception of the evidence of J. A. Murphy, who is a justice of the peace residing at Jamestown, we conclude as follows: As we understand the matter, Stutsman county has a county court with increased jurisdiction, and where such is the case, under the laws of this state, justices of the peace have no power to try and determine any criminal matter which comes before them, even though the same would otherwise be within their jurisdiction but for the existence of such county court. Such justice courts have only the power of binding persons over to the county or district courts, where there is sufficient testimony to show that some crime has been committed and that the person who is charged with such crime has. probably committed it. This being true, J. A. Murphy as such justice-had no power to try and determine the assault and battery matter with-which Peter Neva was charged and to which charge he pleaded guilty before the said J. A. Murphy and a fine imposed upon him. The said justice having no jurisdiction to hear and determine such action, all the testimony and proceedings in his court with reference to the guilt of the defendant and with reference to his plea of guilty, fine, etc., were inadmissible in the trial of the case at bar, and the admission of the records of such justice showing the arrest, plea of guilty, and the fine, etc., of the defendant Peter Neva, was prejudicial error and should not have been received, and the objection of the defendant to their
Section 9441, Compiled Laws of 1913, defines conspiracy. Such section has six subdivisions, the first of which only is material here, which is as follows: “If two or more persons conspire to commit a crime, each of them is guilty of a misdemeanor.” Webster defines conspiracy as follows: “To conspire is to make an agreement, especially a secret agreement, to do some act, as to commit treason or a crime, or to do some unlawful deed; to plot together, to concur to one end; to agree.” In Words & Phrases, page 1461, Bishop says that it “is the corrupt agreeing together of two or more persons to do by concerted action something unlawful, either as a means or as an end.” “To constitute a conspiracy there must be not only an agreement to co-operate to do a certain thing or act, but the act must be unlawful. Connor v. People, 18 Colo. 313, 25 L.R.A. 341, 36 Am. St. Rep. 295, 33 Pac. 159.”
There is no testimony in the record showing there was any agreement entered into, or conspiracy, to do an unlawful act. John Neva used a great deal of abusive and vile language according to the testimony of the plaintiff, but this vile and profane language standing alone does not prove a conspiracy. John Neva had a claim on some of the property of Andrew Neva by way of chattel mortgage, which he claims was a prior mortgage on some of the stock to the mortgage which was being foreclosed. With all the vile language used by John Neva, we may include in this discussion that of Joe Koenig, the act of John Neva in pulling off his coat, and the act of Joe Koenig, purposely or accidentally bumping into the plaintiff; and their vile language, if any, may be sufficient to tend in the direction of proof of the overt act which is necessary to occur or be performed by the party charged with conspiracy, except where the agreement or conspiracy, if any, relates tO' a felony upon the person of another or arson or burglary. Section 9444, Compiled Laws of 1913, reads as follows: “No agreement except to commit a felony upon the person of another, or to commit arson or burglary amounts to a conspiracy, unless some act beside such agreement is done to effect the object thereof, by one or more of the parties to such agreement.”
Rehearing
On Petition for Rehearing.
Appellants have filed a petition for rehearing.
It is first contended that the court failed to decide the question of
It is also contended that the court failed to pass upon the question of the admissibility in evidence of the justice’s docket containing the record of the admission of guilt of Peter Neva in the prosecution for assault and battery. As stated in the former opinion this docket was withdrawn, and we are agreed that the error, if any, in its admission, was cured by such withdrawal.
It is also contended that the court failed to pass upon the question of whether the verdict for exemplary damages returned against, the defendant Joe Koenig can be permitted to stand in view of the fact that the jury returned no verdict for actual damages against him. This point was overlooked in the former opinion. We are entirely agreed with appellant’s counsel that exemplary damages cannot be awarded unless actual damages in some amount, either nominal or compensatory, are proved. It is time the jury in this case did not in its verdict assess actual damages against the defendant Joe Koenig, but in special interrogatories submitted to the jury and returned with its verdict it specifically found both that the injuries inflicted upon the plaintiff by Peter Neva were inflicted by him pursuant to a conspiracy between all three defendants, Peter Neva, John Neva, and Joe Koenig-,, and that all these three parties worked in conjunction with each other. Under these facts as found by the jury the plaintiff was clearly entitled to recover actual damages against the defendant Joe Koenig, and according to the jury’s own finding such actual damages had been proved. The error on the part of the jury, therefore, in not assessing actual damages
We are satisfied that tbe verdict was just and right.
A rehearing is denied.
Concurrence Opinion
(specially concurring). I concur in the result and judgment announced in the opinion of Mr. Justice Robinson. I do so because I think that no proof was necessary of a prior agreement or conspiracy on behalf of the defendants to make the assault. There was, to my mind, evidence of a joint tort, and that those who did not actually make the assault aided and abetted in its consummation. This I believe is all that is necessary.