99 Cal. 481 | Cal. | 1893
After a consideration of this case upon a hearing in Bank, we are satisfied that the judgment and order ■denying defendant’s motion for a new trial should be reversed.
This action is to recover damages for personal injuries caused .'by an alleged wrongful and malicious assault made by defendant upon the person of plaintiff. The jury rendered a verdict for plaintiff in the sum of nine thousand dollars, upon which judgment was entered, from which and from an order denying his motion for a new trial defendant appeals. The main question in the case was whether the appellant used unnecessary force in expelling the respondent from a building in the possession of appellant; and we think that certain instructions of the court to the jury were misleading, and prejudicial to appellant.
The undisputed facts are these: Appellant and his partner Leach were in the rightful and peaceable possession of a small workshop, in which they were engaged in making and experimenting with certain machines for pitting fruits. Respondent entered the shop at a time when appellant was in an adjoining rear room, and after speaking to a young man in the shop, immediately commenced in a rude and wrongful manner to handle two of said machines with great force, and to whirl the wheels thereof and to operate said machines with great violence, so as to put them in great danger of being destroyed or broken. ' The noise of the whirling wheels attracted the attention of appellant who came into the shop and in a peremptory manner ordered respondent to let the machines alone and to leave the premises. Respondent replied that he had left the machines alon'e, but did not proceed to leave the shop. As to the details of what then immediately occurred there is some conflict of testimony; but appellant, with an oath, told respondent that if he did not leave he would pound him on the head, and respondent replied with an oath that he would like to see him pound him on the head; and appellant then picked up a
•Whether or not the business and shop of appellant were of such a character as to carry an implied invitation to the public to enter the shop for business purposes need not be determined; for it is clear that respondent did not enter for any purpose of business. He was clearly a trespasser, at least from the moment he commenced to unlawfully and violently manipulate the said machines. The case then is within the rule that a man’s house is his castle, and that he has the right to defend it against an intruder with all the force reasonably necessary to the defense. Of course, in such a case, a man would be liable for the result of a brutal use of force clearly beyond what the occasion warranted; but, in determining such a question, due allowance should always be made for the difficulty which a reasonable man would have in measuring, under exciting circumstances, the exact amount of force necessary. And it is extremely important that a jury, in passing upon such a case, should not in any way be misled by an instruction of the court.
We think that the jury were misled by instructions 4 and 5 given at request of plaintiff. In instruction 5 the court told the jury that “before the defendant would have been authorized to use force to remove plaintiff from his place of business, he should have requested plaintiff to depart, and then,” efce«
We think, also, that instruction 4 was erroneous and misleading. By that instruction the jury were told that: “If the jury finds from the evidence that the plaintiff at the time of the injury complained of was not trying to injure the defendant, nor his property, then any force used against plaintiff .... was wrongful.” From tips instruction the jury might well get the impression that if when the force was used the respondent was not, at that very moment, engaged in the act of injuring appellant’s property, then appellant had no right to use force, and such impression would have been a wrong one. When respondent went into the room and commenced endangering appellant’s property, as above stated, he became a trespasser, and appellant had a right to put him out, and to use sufficient force to do so; and the fact that at the moment when the force was used respondent was not then handling the machines was of no consequence.
We think, also, that the court erred in a ruling upon the admissibility of evidence in a matter affecting the amount of damages. The respondent introduced as evidence tending to prove the probable future duration of his life certain mortuary
The judgment and order appealed from are reversed] and the cause remanded for a new trial.
De Haven, J., Fitzgerald, J., Beatty, C. J., and Harrison, J., concurred.
Rehearing denied.