James v. Hayes

65 P. 241 | Kan. | 1901

The opinion of the court was delivered by

Cunningham, J.:

Before considering the errors claimed by the plaintiff in error, we may and ought to say that the record, even Mr. James’s own evidence, does not show the slightest excuse for the deadly and almost fatal assault which he made on Mr. Hayes. It was entirely without legal excuse. Nothing in the acts of Mr. Hayes or the controversy between them can be found to justify the shooting. However, he is entitled to a fair trial under the rules of law, which his counsel claim he has not had.

The first error claimed is in the admission of the testimony of Doctor Mitchell, who attended Mr. Hayes at the time of his injury. The doctor testified as tt> the character and location of the wound received by Mr. Hayes, and was then permitted to tell what would have been the effect had the wound been made upon other portions of the body ; for instance, if it had penetrated the heart, stomach, or liver. It is probable that this testimony was not very material, yet we do not deem it wholly without relevancy. It certainly could have done the defendant no harm.

Complaint is made that the clothing worn by Mr. Hayes at the time he was shot was exhibited to the jury over the objection of the defendant. We do not deem this erroneous. It showed very plainly where and how many shot struck Mr. Hayes, and whether the wound inflicted was grievous or slight.

It is assigned as error that Mr. James was not permitted to answer the question, “Is your physical condition such that you can have a physical contest with anybody?” This, under the evidence, was wholly immaterial. Mr. Hayes was making no hostile demonstration. No claim can be made that it was necessary for Mr. James to shoot at the time he did in order to protect himself. He was permitted, in quite a lengthy examination, to state his exact physical condition.

The court gave the following instruction :

“A party is not generally liable in damages for an injury which is the result of an accident, and if you believe from the evidence in this case that plaintiff was injured, but that the injury received was the result of an accident, then plaintiff cannot recover. But if you find that at the time of the injury received by plaintiff the line between plaintiff’s and defendant’s properties was in dispute, plaintiff claiming said line to be further south than where defendant claimed it to be ; that plaintiff went upon said disputed tract of land to determine where a certain post had heretofore been located, and while there in the act of digging upon said strip of land defendant procured á> loaded shot-gun, pointed it toward plaintiff and discharged it, and plaintiff was injured by reason of the discharging of the gun by defendant, then I instruct you that defendant is liable in damages to plaintiff for any injury he received on account of the discharging of the gun, and it makes no difference whether the defendant intended to hit the plaintiff or not.”

Plaintiff in error complains that this instruction, and especially the last clause thereof, does not correctly state the law ; that it does make a difference in the damages “whether the defendant intended to hit the plaintiff or not.” He argues that this instruction goes to the extent of saying to the jury that as much punitive damages should be allowed in case of an unintentional injury as in one inflicted purposely. We do not think that meaning can be attached to this instruction. It only says that the defendant would be liable in damages whether the injury was intended or not; that is, some damages, the character and extent of which were properly defined and explained in other instructions. Certainly it can hardly be contended that, had the premises laid down in the former part of this instruction existed, Mr. James would not have been liable in some damages. A threat with a loaded shot-gun is not the recognized legal way of settling a controversy about a disputed boundary; and if injury results to another by the discharge of the gun, either by reason of the careless handling and without intention, or purposely, under the conditions therein set out, the injured one would be entitled to recover compensatory damages at least.

It is further claimed that the verdict is excessive and oppressive ; that the jury should not have allowed so much as $500 for pain and suffering, nor so much as $1000 for permanent injury. The wound inflicted was very serious. The defendant in error was detained from his business thirty-nine days, and it was thought for a time that his injuries might prove fatal. He was taken to and cared for in a hospital, suffering pain for several days quite acutely. ' The muscles of his body were stiffened and movement impeded. It is not possible, in the nature of things, accurately to estimate the money value of pain. We cannot say that so many hours or days of suffering of such intensity shall be estimated at so many dollars, nor can we estimate with any close accuracy the permanent damage that may come to one from so serious an injury. While at the present little inconvenience may be experienced therefrom, as age advances the effects may be felt more and more. The very best that can be done is to submit the whole question to the enlightened and oath-bound consideration of an impartial jury, with proper instructions as to the law governing such cases and arguments by counsel. The rule for the government of the jury was correctly stated by the trial court as follows :

“In cases of this character, where damages are sought to be recovered for personal injuries, no fixed rule can be laid down in arriving at the amount of the verdict. If you find for the plaintiff, then in determining the amount of actual damage you have a right to take into consideration the extent of the injury, whether it is permanent or only temporary, any pain or suffering the party may have sustained, loss of time, or his inability to labor on account of the injury he received.”

We cannot say that the verdict is not authorized by the evidence, or that its amount is so excessive as to indicate passion on the part of the jury.

The plaintiff in error requested the court to give nine different instructions, none of which was given. The refusal of the court in> this respect is alleged as error. We have carefully examined them and are persuaded that all the propositions of law therein contained which were applicable to the facts of the case were fully covered by the instructions which were given.

The record is quite voluminous. We have carefully examined it and are compelled to say that no reversible error is found. The judgment of the trial court will be affirmed.

Johnston, Greene, Ellis, JJ., concurring.