83 Neb. 615 | Neb. | 1909
This was a civil action to recover damages for an assault and battery. There was a verdict and judgment for the defendant, and the plaintiff appeals.
1. The plaintiff sought to recover for two assaults pleaded as separate causes of action; the first occurring on the 11th day of July, and the second on the 23d of the same month. In the view we have taken of the case, it will only be necessary for us to consider the facts of the latter date. It appears that the parties were neighboring farmers, between whom there had been considerable friction, and that the defendant had forbidden plaintiff to come upon his- premises. On'the morning of July 23 the plaintiff found a steer belonging to defendant upon his premises. He got upon a pony and rode to the house where defendant, with a Mr. Lewen, who was working his farm, resided, for the purpose of informing Mr. Lewen of the straying of the steer. His account of the transaction is that he rode up and called to Mrs. Lewen, whom he saw through the screen door, and thereupon the defendant came out with a gun, threatened to kill him, and struck him with the gun, breaking his arm. The defendant’s account of the transaction was that the plaintiff rode up to the house, and said a calf had' got out' of ■ defendant’s pasture and was in plaintiff’s corral; that thereupon the defendant said to him, “Well, now you have told your story I want you to get out of my yard with your horse”; that he didn’t go, and defendant stepped into the house and got a gun, and told him, “I want you to he going”; and that, plaintiff remaining sitting on his horse, the defendant struck at his horse with the gun; that the horse jumped and that he supposed he hit the plaintiff on the arm with the gun. There was no evidence that the plaintiff had said anything except to inform the defendant of the whereabouts of the stock, nor that he did anything to excite or provoke the defendant, unless his failure to depart as soon as defendant thought he should might be
2. The twelfth instruction given by the court on its own motion was as follows: “The jury are instructed that, while the law will not excuse or justify the use of more force than is reasonably apparently necessary to eject an intruder upon the premises of a person or than is reasonably necessary in self-defense and to prevent receiving bodily harm, still the law does make a reasonable allowance for the infirmity of human judgment under the influence of sudden passion or provocation, and it does not require men to reason with mathematical exactness the degree of force necessary to eject a person or to repel an assault. The jury must determine from all the
3. The sixteenth instruction given by the court told the jury that, if it believed from the evidence that plaintiff recently before the alleged assault had used provocative and threatening language toward the defendant, and at the time by language and conduct aggravated defendant into making an unlawful assault, they might take such circumstance into consideration in mitigation of damages. This instruction was not confined exclusively to either cause of action, but was given as applicable to both. There is absolutely no evidence that the plaintiff used any provocative language on the 23d day of July, nor at any time betwen the 11th day of July and that date. The instruction was therefore misleading and erroneous. Langdon v. Clarke, 73 Neb. 516. Since punitive damages cannot be recovered in this state, it logically follows that the rules with regard to the mitigation of such damages, which obtain in states where exemplary damages are allowed, are not applicable here, and the above instruction is erroneous for that reason also. Mangold v. Oft, 63 Neb. 397. The remedy by action to recover damages for assaults and batteries, when properly administered, is an
We therefore recommend that the judgment of the district court be reversed and the cause remanded for a new trial.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for a new trial.
Reversed.