142 N.W. 242 | N.D. | 1913
The complaint alleges that the defendant, Brinton, on August 22, 1909, in Beach, North Dakota, “did make a violent assault upon plaintiff and did with a billy or bludgeon wilfully and unlawfully strike, beat, and wound the plaintiff over and about the left arm and left side of the head, then and there inflicting upon the plaintiff great injuries to his head and arm, to the damage of the plaintiff in the sum of $5,000.” Defendant by answer denies the assault and injuries, but alleges that the plaintiff wilfully and maliciously assaulted him, defendant; and that if plaintiff received any injuries from defendant the same were inflicted while plaintiff was unlawfully assaulting defendant, and that any injuries suffered were inflicted by defendant in the necessary defense of his person from the unlawful assault made upon him by plaintiff. The jury found for defendant by a general verdict. Plaintiff appeals from an order denying a new trial, assigning error in the admission and exclusion of testimony and instructions given and refused.
It appears that upon the day in question, and prior to the altercation made the basis -of this suit for damages, Stockwe.il and Brinton met in the early afternoon, when a difficulty arose and the parties grappled,
Error is grouped under many assignments, discussed as follows in the order taken: Defendant was called for cross-examination under the statute as the first witness, and among other things had testified in substance that he had gone over to Haigh’s office and “helped myself to the club.” Whereupon the question was asked: “You never told him where it was?” to which the court sustained an objection. Haigh subsequently testified that “I told Brinton the club was there (in my office), because I believed that Stockwell was going to pitch onto him. Guess I told him the billy was on the side of the wall (of my office); and again: “When I talked 'with him about looking out for Stockwell, about this article, I said something about the billy. I had warned him on account of this former talk with Stockwell. He could do as he saw fit about arming himself with it.” Defendant admits he took it pursuant to such permission, in anticipation of the trouble subsequently had; so any error in the ruling, conceding the same to have been error, was subsequently cured. Both parties were fully examined, touching
Counsel’s second assignment is based upon the exclusion of the following, asked of Webber: “Could you tell from that point of vantage in which direction these blows were falling, as to what portion of the body of Stockwell, as to whether they were aimed at his head or his neck or his arm?” The witness had previously testified on the subject that defendant “walked out to him and hit him on the head with a club, . . . followed him up, striking him, and Stockwell guarding with his left arm, backing away, Brinton following, striking him,— landing on Stockwell mostly'on the left arm. There was blood on the side of Stockwell’s face; probably half the side of the face was discolored by blood. I did' not see his arm closely at that time.” Witness was testifying to events occurring from 150 to 180 feet from him, and concerning events described in detail by a dozen witnesses and a circumstance merely of the affray. Any error must be nonprejudicial under such circumstances. In the cross-examination of this witness he was asked: “Where did Stockwell have his hands at that time he was facing Brinton and saying something to him ?” to which the plaintiff objected on the ground that “it assumes that Stockwell was saying something to Brinton, and the witness has testified that he could not tell who was talking.” This is assigned as error. Witness had just testified that Stockwell had “walked in a southeasterly direction, stopped, turned, and faced Brinton. There were some words passed between them. lie turned and faced Brinton; stood still a few feet from him.” This is a sufficient basis in the testimony to warrant the question on cross-examination. The same witness was asked oh cross-examination : “Can you tell us just where Mr. Brinton was when you think you-saw ITaigh jerk the club out of Murphy’s hands?” To this question counsel interposed the objection “that the question assumed that the witness had said that he thought Ilaigh jerked the club out of Murphy’s hands.” The issue was whether the club had been taken from Brinton or Murphy. Witness had previously testified: “I was up closer when Murphy took the club from Brinton. Did not see Haigh
A dozen or more assignments revolve around the testimony and offers of testimony concerning the billy or policeman’s club. This is described as being from a foot to 15 inches long, weighing a pound or a pound and a half, loaded, made of leather, with a strap on the handle. Naturally its size and importance is not magnified by the defendant, but it is described in detail and given much attention by the plaintiff and his witnesses. It was not produced upon the trial, and counsel for plaintiff argues strenuously that its suppression by the defendant, and his inability to procure and cause the production of the same, together with the fact of Haigh being its owner and its being taken by defendant from Haigh’s office in preparation for the affray, is evidence (1) that Haigh and the defendant had entered into a conspiracy to beat Stockwell with the billy; (2) that there was sufficient evidence from which the acts and declarations of Haigh concerning the affray, made soon thereafter, were admissible and should have been admitted in evidence; and (8) that because Haigh received possession of the club after the assault, and has not produced it, he has suppressed evidence concerning which certain rulings of the trial court constituted error.
All of the assignments and arguments thereon, based upon the suppression of testimony because the club was not produced on the trial, are disposed of by mention of the fact that counsel for the plaintiff has at no place, as appears from the record, demanded .the production of this club. He has assumed, evidently, that it could not be produced, but nothing appears in the record upon which to base such an assumption. Haigh testifies under cross-examination: “I carried the billy home with me; didn’t bring it down with me this morning; have not searched for it; have not seen it since March, 1910; don’t know whether I saw-it at that time or not; laid it on the shelf in the cellar, on the south side near the coal bin; cannot tell when I saw it last; it was some time
Haigh was asked by counsel for plaintiff, with reference to this event:
Q. Did you have any conversation after going back on the sidewalk with Mr. Murphy ?
A. Yes.
Q. What did you say to Murphy when yon got hack on the sidewalk ?
A. I said it was mine, I guess I said it was mine.
Q. You said it was yours ?
A. Yes.
*12 Q. Well, now, did you not state to Murphy something like this, “you said it was yours;” he said, that is, Murphy said, “If I had known that you wouldn’t have got it,” and did you not reply: “I and my friends intended to take it?”
A. No, sir, I didn’t.
And the court also permitted counsel for plaintiff to show that the witness Haigh was convicted for assault and battery on Stockwell, because of this assault by Brinton and his complicity with Brinton therein.
Thereafter Murphy, who previously had been inquired of concerning the statements of Haigh to him regarding the club, after the melee, ■was called in rebuttal and testified fully upon the subject, as will appear from the following testimony of Murphy:
Q. Mr. Murphy, you may state if after Haigh had taken the billy away you had any conversation with him up on the sidewalk ?
A. Yes, sir.
Q. Did he state in that conversation that the billy was his? And did Mr. Haigh state to you when you got back on the sidewalk that' the billy was his, and you replied that, if you had known that, you would not have let him have it; and did he not, replying, say that his friends were there to take it away if it were necessary, or that in substance ?
A. Yes. He said he had friends enough there to get it.
Any error in the exclusion of this testimony early in the trial must have thus been cured. Toward the close of the trial Haigh was recalled for further cross-examination, and testified that on his way home that evening he showed the billy to Lovell, a witness of plaintiff, and then was asked: “Did you make any statement to him at that time as to what had been done with that billy?” to which an objection was sustained. Thereupon counsel made the following offer: “The plaintiff offers to cross-examine the witness Haigh as to any statements that he made to Lovell on the stand, and to ask him directly as to whether or not he didn’t state to Lovell, and at the same time exhibit to him the billy, and state in substance that that was the billy with which Brin-ton had beaten Stockwell up that night; and in the event that Haigh
Counsel has challenged in ten particulars the sufficiency of the evidence to sustain the verdict, bearing upon the preponderance of the evidence and the right of Brinton to make self-defense with the weapon used or at all. There was a square conflict in the testimony, regarding all these matters. The testimony of the defendant and his witnesses, evidently accepted by the jury as the true version of the affray, laid ample foundation for the verdict rendered.
Appellant also has assigned as error the action of the trial court in announcing at the close of the testimony that counsel on each side would be limited in argument to forty-five minutes, to which statement or direction plaintiff excepted, and immediately, presumably because thereof, entered into an agreement with opposing counsel to submit the cause to the jury for their determination without argument by either side, both counsel waiving thereby their right of argument.
In its instructions upon exemplary damages the court distinguished between actual and implied malice, and in so doing may have erred under the holding of this court in Shoemaker v. Sonju, 15 N. D. 518, 108 N. W. 42, 11 Ann. Cas. 1173. But any error so committed in instructions concerning exemplary damages only is rendered nonprejudicial by the verdict finding no cause of action to have existed for com
Contra: Vlasservitch v. Augusta & A. R. Co. 85 S. C. 291, 67 S. E. 306; and note in 29 L.R.A.(N.S.) 272 on page 279.
An exception seems to be made as to public-service corporations owing a public duty for wanton violation thereof. Eecoveries for exemplary damages only have been there upheld. Webb v. Atlantic Coast Line R. Co. 9 L.R.A.(N.S.) 1218, and note, 76 S. C. 193, 56 S. E. 954, 11 Ann. Cas. 1134, and conclusion of notes in 10 L.R.A.(N.S.) 403; and 17 L.R.A.(N.S.) 1226-1231. This question is not here involved, however, and mention is made of possible exceptions thereto that it may not be understood as the invariable holding in all casos. Hence, any error in defining the circumstances under which exemplary damages might have been allowed, and not limiting the jury in the allowance of any compensatory damages, upon which the jury was properly instructed, must be harmless error.
Defendant has assigned generally as error the refusal of the court to give thirteen requested instructions. As counsel has not in his brief referred to each one in particular, we will treat them in the same manner, and not set them forth. We have examined them all carefully with reference to the instructions given, and considered them in connection with the scope of the testimony and the issues involved, and find no error, as the instructions given fully covered the matters embodied in the requests so far as the requests were pertinent and correctly stated the law. This covers so much of the sixty specifications of error as settled as is assigned and attempted to be discussed in the brief. And many we have covered in this opinion might have been passed by as abandoned, as not argued in the brief of appellant. We are satisfied no error was committed on trial warranting a reversal of this ease, and it is therefore affirmed.