97 Neb. 466 | Neb. | 1915
Lead Opinion
This is an appeal from a judgment of the district court for Johnson county, wherein plaintiff, Eisentraut, recovered a judgment against defendant, Madden, for the sum of $1,500 on account of personal injuries alleged to have been inflicted upon plaintiff by defendant by unlawfully, and without cause, striking plaintiff upon the back part of the head with a large, heavy, metal scoop shovel, whereby a lasting and permanent injury was suffered by plaintiff, the character and extent of the alleged injuries being fully set out in the petition, together with plaintiff’s pain and suffering, physically and mentally. The amount sued for was $10,000. The petition also contains a second cause of action, by which the expenses of the sickness and ailments, consisting of physicians’ treatment and medicine, are alleged to the amount of $300, making a total of $10,300 damages alleged to have been suffered. Defendant an
The evidence is conflicting in many respects, but, so far as the facts concerning the alleged assaults are concerned, there is practically an agreement. There was some difficulty between the parties, Avhich seems to have been of a trivial nature. Plaintiff Avas a school district officer, but, upon the expiration of his term of office, was succeeded by defendant, who claimed there had been some slight irregularity in keeping the books of the office. Owing to some assertion by plaintiff as to his knowledge and ability to properly keep his accounts, defendant styled plaintiff as “Professor,” which seemed to nettle him. At times harsher epithets were used by both parties, but this consisted of words only. On the 3d day of December, 1910, a neighbor was engaged in shelling corn, and these parties were called in to assist. Upon defendant’s arrival at the place of the shelling, he passed near plaintiff, when he gave his apparently usual salute, “Hello, Professor.” This angered plaintiff, who immediately ordered defendant to cease “calling him names.” He approached defendant in a menacing manner, shaking his fists, and cursing violently, but to which defendant made little, if any, response, standing still, but holding his scoop shovel in such a position as to ward off any blows which plaintiff might attempt
There is practically no conflict in tbe evidence as to tbe beginning of this unfortunate affair. While it was not in good taste for defendant to be derisively calling plaintiff “Professor,” yet it did not charge him with the commission of any offense against tbe laws of the state, nor of tbe United States, nor did it accuse plaintiff of the violation of public morals, nor in any way slander him, nor bold him up to public contempt, ridicule or scorn. It was not intended as a pleasantry,' perhaps, and yet could scarcely be considered so exasperating and defamatory as to excuse tbe assault which followed. The evidence shows that defendant committed no act which could be construed as a physical attack upon plaintiff, nor a desire to enter into a contest of that kind. Plaintiff was angry,
It is contended by plaintiff that he had abandoned his attack and was moving away when he received the blow complained of; but, if so, the distance to which he had gone is not clearly stated. However, it seems quite clear that he was not far enough away to have given defendant sufficient time to do much in the way of reflection. Otherwise stated, the blow with the shovel was not so long after the castigation received by defendant as to justify holding 'it to be a separate transaction and not a part of plaintiff’s attack. Plaintiff was the aggressor. He committed an unlawful assault upon defendant, the final result of which was evidently not satisfactory to him. To use a common expression, he “got the worst of it.” The question then arises: “Can plaintiff, after assaulting defendant, knocking him'down, and inflicting an injury upon him, recover damages for what he has suffered and is suffering, which are the natural result of his own act?” We use the words
A kindred question arose in Fosbinder v. Svitak, 16 Neb. 499, where we held that a plaintiff could not recover where-he had been the original assailant, the first wrongdoer, and, upon receiving injuries resulting from the affray brought on by himself, transfer his cause from the battlefield to the courts. A somewhat similar question was presented in Taylor v. Clendening, 4 Kan. 524, although not based. upon exactly similar facts. In that case the-plaintiff was held to be the aggressor, but his withdrawal from the affray was not as claimed in this case. The-court say: “He cannot undertake to wreak an (un) lawful vengeance upon his antagonist — pistol in hand — and, defeated, sue him for damages to the person, upon the basis-of the instructions. He must run his own risk. Nor would it be an easy matter for the party, attacked in the manner-narrated in the testimony of the defendant, to act with all the deliberation the instruction would seem to require. In the heat of blood he could hardly be expected to weigh his words or to measure or count his blows or shots very carefully.”
At the request of plaintiff, the court gave to-the jury the following instruction: “The court instructs the jury' that the defendant alleges that he acted in self-defense. You are instructed that the law does not permit a person to voluntarily seek or invite a combat, or put himself in the way of being assaulted, so that when hard pressed he may have a pretext to injure his assailant. The right of self-defense does not imply the right of attack, and it will not avail in any case where the difficulty is sought for and induced by the party by any wilful act of his,
As we view it, much of this instruction cannot be applied to the evidence in this case. Assuming that the words,. “Hello, Professor,” can be construed as offering a direct insult, one that would, ordinarily, cause anger pn the part of plaintiff, we are yet met with the well-established rule that mere words cannot justify an assault upon the person using them. There was therefore .no legal excuse which could justify the attack of plaintiff upon defendant, which the evidence clearly shows he made. Without any just cause or excuse, he made such an attack, knocking defendant down. Plaintiff seems not to have been satisfied with the injury thus inflicted, but followed up the' advantage thus gained by springing upon defendant and administering further beatings until defendant called for help, and plaintiff was forcibly pulled off the prostrate body of his victim. We find nothing in the evidence showing that defendant did “voluntarily seek or invite a combat, or put himself in the way of being assaulted, so that Avhen hard pressed he may have a pretext to injure his .assailant.”' Nor can we apply the direction that “the right of self-defense does not imply the right of attack, and it will not avail in any case where the difficulty is sought for and induced by the party by any wilful act of his, or where
The instruction .also submits to the jury the proposition that, if defendant voluntarily sought or invited the difficulty, or if defendant provoked or commenced or brought it on by any wilful act of his own, or if he voluntarily or of his own free will engaged in it, the jury would not be authorized to find for defendant upon the ground of self-defense. There may be no question but that the instruction is sound law when applied to a state of facts coming within the rule, but, as w.e read the evidence, there was nothing therein to which the rule could be applied, and we are persuaded that the instruction, as written, should not have been given. From an examination of the instructions given on the court’s own motion, it is clear that the law was fairly and fully presented to the jury, and all well within the issues in the case, and should have been sufficient.
Substantially, the same instruction was given and approved in Morris v. Miller, 83 Neb. 218, annotated in 20 L. R. A. n. s. 907; but there is a clear distinction between the two cases. In the Morris case the parties to the affray voluntarily and mutually agreed to enter into the contest, and both were wrongdoers. Therefore the instruction was properly given in that case. As we have'shown, the facts in this case were quite different. The rule stated in Glassey v. Dye, 83 Neb. 615, is more clearly applicable to the facts of the case at bar than that of Morris v. Miller, supra.
While we recognize the established rule that, if a plaintiff wrongfully assaults a defendant, and, upon reflection, or for some other reason,-voluntarily withdraws from the conflict, the person assaulted is not justified in following up the withdrawing party, and, after time for reflection, inflict a neAV and counter assault, and he may, in a proper case, be held liable for any damage arising from his wrongful assault; but that rule must be applied in reason and Avith a proper consideration for the passions and infirmities
We are constrained to believe-that the instruction above quoted should not have been allowed.
The judgment of the district court is reversed and the cause is remanded for further proceedings.
Reversed.
Concurrence Opinion
concurring.
■ The majority opinion seems to hold that the evidence establishes that the blow of which this plaintiff complains was so connected with the affray which the plaintiff himself brought on that it must be regarded as a part of that affray. If this is the necessary conclusion from the evidence of course the judgment is Avrong. I think that the instruction set out in the opinion Avas not applicable to the evidence, and was therefore erroneous. It was highly prejudicial to the defendant. For this reason I concur in the reversal of the judgment.
