Christensen v. Holm

144 N.W. 919 | S.D. | 1914

McCOY, J.

This is a civil action to' recover damages for assault and battery. Defendants -denied- assaulting plaintiff, and alleged that plaintiff first assaulted defendant Flolm, and that Hiolm thereupon in self-defense necessarily and without the use of unnecessary force -protected himself from the assault of -plaintiff. There was a -verdict and judgment in favor of plaintiff for $250 against both defendants. A motion -for a new trial was denied, and -defendants appeal.

[1-3] Appellants urge that the -evidence is insufficient -to- sustain a verdict against either defendant in that there was no evidence -tending to show that either defendant -committed any assault upon plain-tiff. In substance plaintiff testified that he had broken his wagon on the highway; th-at defendants, came along in a buggy and stopped and asked plaintiff if he wanted help, and he told them he did not, but inquired if they had a 'wrench, and ■defendants answered that they had not; that defendant Holm then said, “We will help- you with- some hay; you want some hay;” and Holm then got out of the buggy and came to where plaintiff was standing and the first thing struck plaintiff on the head with his fist, and that plaintiff pushed him away and told him he would have nothing- to- do- with- him, and told him to let plaintiff alone; that he swore at plaintiff, and the horses of plaintiff became scared, and that plaintiff reached for the lines, and that then Holm again struck plaintiff on the head and pounded plaintiff as fast as he could until plaintiff could work no- longer, and then Holm went to the buggy and went away. Wien they first came up Holm was driving. Christensen held the lines when Holm got out. When Holm was pounding plaintiff, Christensen said, “That is right, give it to him.” Plaintiff further testified to- having-'had trouble with Holm about a year previous in relation to a stack of hay and trespassing cattle. Both defendants and members of flheir family who were present in the -buggy, testified that neither of defendants assaulted plaintiff; that, when Holm got -out of the buggy and went up to- -plaintiff, plaintiff without warning first struck Holm, and that Holm: pushed him away as -fast as he could; and that as soon as plaintiff ceased his assaults Holm got in the buggy and left. It wa-s the sole -province of the jury to- settle this conflict of testimony. The jury had the -right to believe the statements of plaintiff and to disbelieve -all the various1 witnesses wh-o* testified for defendants. The weight -of testimony is not to be determined alone from the number of witnesses- who- may testify up-on a disputed question of fact. So far as this appeal is concerned, the testimony of -plaintiff must ibe taken as -true. We are of the opinion there, was ample -evidence- to sustain a verdict for plaintiff against -both defendants. . •

[4, 5] On cross-examinati-orii of plaintiff, after hi's- examination in chief, he was asked, “Haven’t you told- him repeatedly that ‘you were a great scrapper and .that you and' yo-ur brother us-ed to -clean out dance houses in the old country ?” Th-e question was objected to-, n-o grounds -being stated, and the objection wa-s sustained, and defendant' excepted. When .the -court sustains an objection to a question, 'where no ’grounds of objection are stated, if the question was objectionable on any ground, the ruling of the court will not constitute error. Whether plaintiff generally was of a quarrelsome nature or not, and whether defendant had knowledge thereof, was a proper subject of inquiry in connection with the defense but was surely no part of (plaintiff’s cause of action, and furthermore, such quarrelsome nature could 'not be proven by specific acts.. The objection was properly sustained.

[6, 7] On cross-examination of defendant Holm, he was asked: “Now, Chris, as a matter of fact, haven’t you been engaged in dozen© of scraps or fights at picnics’ or wherever you god” To this question defendant objected on the ground of not proper cross-examination, and the objection was overruled, and defendant excepted. While this question was not proper cross-examination, still -we are of the view -that defendants were not prejudiced by the answering of this question. There was more or less- evidence on both ©ides of this case outside of this question tending to show that 'both plaintiff and defendant were “scrappers,” and’ which evidence, under the circumstances of this case, could have had but little, if any, weight with the jury. The real issue was: W no was the aggressor, under the evidence, as to what took place on. the occasion in question?

[8] Appellants contend that the verdict is excessive but we are of the opinion that this contention is untenable. Many other assignments of error are urged, most of which relate' to the reception or rejection of evidence, all of which have been examined, but we are of the opinion that no reversable error exists therein.

The judgment and order appealed from are affirmed.