Anson v. Fletcher

• Decision Date: 18 July 1974
• Docket Number: 39255,Nos. 39254,s. 39254
• Parties: Irene ANSON, Administratrix of the Estate of Albert Anson, Deceased, Appellee, v. Abe B. FLETCHER et al., Appellants, Impleaded with Larry Kirschmer and the Village of Ewing, Nebraska, Appellees. Irene ANSON, Appellee, v. Abe B. FLETCHER et al., Appellants, Impleaded with Larry Kirschmer, Appellee.
• Court: Nebraska Supreme Court

Page 371

220 N.W.2d 371

192 Neb. 317

Irene ANSON, Administratrix of the Estate of Albert Anson, Deceased, Appellee, v. Abe B. FLETCHER et al., Appellants, Impleaded with Larry Kirschmer and the Village of Ewing, Nebraska, Appellees.

Irene ANSON, Appellee, v. Abe B. FLETCHER et al., Appellants, Impleaded with Larry Kirschmer, Appellee.

Nos. 39254, 39255.

Supreme Court of Nebraska.

July 18, 1974.

Syllabus by the Court

1. A party may, by his acts or omissions, waive, or be estopped to make, objections to the admission or exclusion of evidence. Such waiver or estoppel may arise from failure to object, from acts done or omitted before the evidence is offered, as by failure to object to previous similar evidence, or from some affirmative act done after the ruling on the evidence.

2. An admission against interest is admissible when it contravenes a position taken upon trial by the party making the admission.

3. It is fundamental that a trial court has broad discretion to exclude cumulative evidence.

4. Where recovery was not a mere matter of computation, and depends upon the intangible and subjective elements of pain and suffering and future disability, it will not be interfered with unless it is so grossly unresponsive to the evidence as to be indicative of prejudice, passion, partiality, or corruption on the part of the jury, or unless it appears to be based upon some oversight, mistake, misconception, or misinterpretation, or a consideration of elements not within the scope of the incident.

Jewell, Otte, Gatz, Magnuson & Collins, Norfolk, for appellant.

Mattson, Ricketts, Davies, Stewart & Calkins, John C. Gourlay, Lincoln, for Anson.

Vincent J. Kirby, Norfolk, for Kirschmer.

Frederick M. Deutsch, Norfolk, for The Village of Ewing.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON and CLINTON, JJ., and FLORY, District Judge.

WHITE, Chief Justice.

This is an appeal from two cases, consolidated for trial, in which the plaintiffs sought damages for an assault and battery. In the first case the District Court, after a jury trial, awarded $32,000 to the administratrix of the estate of the decedent, Albert Anson. Anson died after the suit was filed but before trial began. No wrongful death action was brought. In the second case, the District Court awarded Mrs. Irene Anson, the decedent's wife, $10,000 for loss of consortium. The defendants Fletcher appeal, assigning error in the exclusion of evidence and that the jury verdicts were excessive. We affirm the judgments of the District Court.

The facts are as follows: On January 24, 1971, Glen Fletcher, one of the defendants in this action, was married, and a wedding party was held at the Two Rivers Steak House in Ewing, Nebraska. Present at the party were, among others, Abe B. Fletcher, the patriarch of the clan, Robin Fletcher, Glen's son, and Clarence and Edward Fletcher, Glen's brothers. All are defendants in this action. Members of the wedding party began drinking around 4:30 p.m. A small disturbance broke out among the guests before dinner, and a more major altercation erupted during the dinner at which time the proprietors of the steak house, Alex and Mark Thramer, attempted to evict Robin Fletcher. This triggered a brawl in which the Fletchers and other members of the wedding party attempted to prevent the eviction by assaulting the Thramer brothers. A call was placed to Albert Anson, marshal of Ewing.

Anson proceeded to the steak house and announced that he was the law and that he wanted some order. Glen Fletcher began to strike Anson at which point Anson attempted to place him under arrest. As Anson was trying to take Glen Fletcher away, Abe B., Clarence, and Edward Fletcher started to attack Anson. Clarence Fletcher put his arm around Anson's neck and pulled him backwards. Meanwhile Glen, Edward, and Robin Fletcher struck Anson. Abe B. Fletcher announced that no 'tin badge' was going to tell him what to do and was heard to say, 'Go get him (Anson), boys.' Abe B. Fletcher not only incited the other defendants to beat up on Anson, but the evidence also shows that he struck Anson himself.

Glen and Robin Fletcher got Anson down on the ground and continued to hit and kick him. On two occasions Robin Fletcher climbed onto a car and from there jumped on Anson's back. When Anson was able to regain his feet, he sprayed mace on Robin Fletcher and Larry Kirschmer, another assailant, whereupon Robin Fletcher got up and struck him again. At one point during the fracas, the Thramer brothers attempted to rescue Anson by pulling him away toward the steak house and standing in front of him. Glen and Robin Fetcher followed and attacked again, striking Anson and Alex Thramer. Shortly thereafter the fire whistle blew, the fire department arrived, and the crowd broke up. The assault lasted over a period of at least 20 minutes. Anson was beaten bloody and had to be taken away from the scene in an ambulance.

For their first error on appeal, the defendants Fletcher assert that evidence which constituted an admission by the plaintiff was improperly and prejudicially excluded by the trial court. The defendants Fletcher attempted to introduce into evidence certain testimony given by Anson at the preliminary hearing in the case of State v. Kirschmer. Specifically, the evidence offered from the record of the previous criminal hearing consisted of the following testimony:

'Q. Now, did you, in your testimony, you pointed at some marks on your face that you think that Larry did?

'A. I definitely know he hit me in the mouth where I have that scar.

'Q. How do you know that?

'A. Because he was the only guy that ever hit me in the mouth.

'Q. You can distinctly remember that?

'A. I can.

'Q. Even though you were on the ground?

'A. I was standing up.

'Q. Prior to this, you were on the ground, and people were kicking you in the head, is that right?

'A. On the side of my head.

'Q. And it went back and forth?

'A. To the side.

'Q. And to this day you can identify one mark on your face as coming from that--coming from one particular--

'A. It hurt the worst of any fist that hit me.

'Q. Harder than when you were kicked in the head?

'A. No, I would say the fist.

'Q. Okay. Who else hit you with their fist?

'A. I was hit several times by the crowd, but I don't know who all, but they were all too drunk to hit too hard. I could easily hold my own as long as I could stay on my feet.'

The defendants Fletcher contend that it was prejudicial error to exclude their offer of this testimony as part of their case-in-chief. The first ground for our holding that there was no prejudicial error by the District Court in excluding Anson's testimony, taken at the preliminary hearing in State v. Kirschmer, is that the defendants Fletcher waived their objection to the exclusion of most of the testimony, all except the answer to the last question, by actions later in the trial which were inconsistent with the objection. At the beginning of the trial, the plaintiff offered Anson's testimony quoted above, excluding the answer to the last question.

Counsel for both Kirschmer and the defendants Fletcher objected. The plaintiff then offered the same testimony only as against Kirschmer to which counsel for defendants Fletcher again objected. The trial court sustained both objections.

Later, during the presentation of their case, defendants Fletcher made the offer of proof in question here, the same testimony of Anson from the State v. Kirschmer preliminary hearing as offered by the plaintiff earlier. This offer, included Anson's answer to the final question: 'Q. Okay, who else hit you with their fist? A. I was hit several times by the crowd, but I don't know who all, but they were all too drunk to hit too hard. I could easily hold my own as long as I could stay on my feet.' Only the codefendant Kirschmer objected to this offer of proof which was sustained by the trial court.

Subsequently, at the conclusion of the trial testimony the plaintiff reoffered the testimony of Anson given at the Kirschmer preliminary hearing. Although the record is unclear on this point, we assume that the plaintiff merely repeated her original offer and that it consisted of the above-quoted testimony, minus Anson's answer to the last question. Defendants Fletcher and Kirschmer's objections were sustained.

We hold that the defendants Fletcher waived their objection to the exclusion of Anson's testimony, except his answer to the last question, because they objected to the plaintiff's offer of proof of the identical testimony after their own offer was rejected. 'A party may waive or estop himself to object to the exclusion of evidence, * * *. An exception to the exclusion of evidence is waived by action of the party, after the ruling, inconsistent with the exception.' 89 C.J.S. Trial § 662, p. 508. We approved a similar statement of the rule in In re Estate of Kaiser, 150 Neb. 295, 34 N.W.2d 366 (1948): 'As stated in 64 C.J., Trial, § 189, p. 167: 'A party may, by his acts or omission, waive, or be estopped to make, objections to the admission or exclusion of evidence. Such waiver or estoppel may arise from failure to object, from acts done or omitted before the evidence is offered, as by failure to object to previous similar evidence, or from some affirmative act done aftr the ruling on the evidence.'

The defendants Fletcher received an unfavorable ruling on their offer of the Anson testimony. In offering the testimony they presumably desired that it be admitted into evidence. Yet, when the plaintiff reoffered the identical testimony at the close of the trial, the defendants Fletchers' objection was sustained. This objection to the plaintiff's offer constituted an affirmative inconsistent act done after the ruling on the evidence which they are now assigning as error. This act constituted a waiver of their original objection, and the defendants are now estopped from claiming that the exclusion...