Barr v. Post
| Decision Date | 17 November 1898 |
| Docket Number | 8472 |
| Citation | 77 N.W. 123,56 Neb. 698 |
| Parties | WILLIAM BARR v. MARTHA A. POST |
| Court | Nebraska Supreme Court |
ERROR from the district court of Lancaster county. Tried below before CORNISH, J. Affirmed.
AFFIRMED.
Morning & Berge, for plaintiff in error.
Thomas Darnall, J. S. Kirkpatrick, and Stewart & Munger, contra.
Prior to September, 1893, William Barr owned a brick block in the city of Lincoln. In the upper story of this block were a number of lodging rooms. Barr employed Mrs. Martha A. Post to attend to these rooms and keep them in order. She and her family, it appears, occupied a room in the block. She was intrusted with the keys to the various lodging rooms. For some reason her services became unsatisfactory to Barr, and he discharged her. She, however, refused to surrender to Barr, on his demand, the keys for the various lodging rooms. On September 6, of said year, Barr attempted to take his keys out of the hands of Mrs. Post. This, however, it seems he failed to accomplish. Mrs. Post brought the present action in the district court of Lancaster county against Barr to recover damages for an alleged assault and battery inflicted upon her by Barr at the time he attempted to take from her possession the lodging keys. She had judgment, and Barr has brought the same here for review on error.
1. On the trial the district court refused to instruct the jury at the request of Barr that he had the right to take possession of these keys from Mrs. Post, provided in doing so he did not use any more force than was actually necessary for that purpose, nor thereby commit a breach of the peace. This action of the court, it is insisted, was erroneous. The ruling of the court involves the right of a citizen, without recourse to law, to seize and take possession of his personal property wrongfully in the possession of another, provided in so doing he does not commit a breach of the peace, nor use any greater force than is actually necessary for the purpose of recaption. It seems that this right of recaption of personal property exists. (Mussey v. Scott, 32 Vt. 82; Cross v Marsten, 44 Am. Dec. 353; Manning v. Brown, 47 Md. 506; Stearns v. Sampson, 8 Am. Rep. 442; Sterling v. Warden, 51 N.H. 217; Hite v Long, 18 Am. Dec. 719.) But the record here does not present for decision the question whether it does. Barr's answer to the charge of assault and battery was a general denial, and under this issue evidence which tended to justify the assault and battery was inadmissible. (Levi v. Brooks, 121 Mass. 501; Cooper v. McKenna, 124 Mass. 284.) The court therefore did not err in refusing the instruction asked.
2. The next complaint relates to instruction number 6 given by the court. It is as follows: "You should take into consideration the pain and suffering, bodily and mentally, endured by the plaintiff; also any permanent internal injury, if any such has been shown by the evidence, such pain or injury being caused by the wrongful act of the defendant." Counsel for the plaintiff in error insist that the giving of this instruction was erroneous, because the record contains no evidence that Mrs. Post had sustained any permanent internal injury as the result of the alleged assault and battery. The evidence on behalf of Mrs. Post tended to show that soon after this alleged assault and battery she suffered a miscarriage, and that this was the result of the battery inflicted upon her by Barr; that about a year after this time she was in a condition of "tubal pregnancy" or "extra-uterine pregnancy;" that an operation was performed upon her at this time and a foetus removed. Physicians called as experts in her behalf testified that a miscarriage was sure to unfit a woman for labor; that very few women ever afterwards regained their strength; that Mrs. Post could never completely recover; that Mrs. Post had retroverted uterus; that this produced constipation and caused, and would continue to cause, suffering and pain. To the question, "Was this condition temporary or permanent in this injury?" the physician answered: This is not very satisfactory evidence; but we think it is evidence which tends, at least, to show that Mrs. Post was suffering from an internal permanent injury, and we cannot therefore say that the court erred in instructing the jury as it did.
3. On the trial of the case counsel for Mrs. Post called her husband as a witness, and at the time of doing so stated to the court that he was about to call plaintiff's husband as a witness; that the witness had been very sick and was at that time in a critical condition, and that he made this announcement to the court because he did not know what might happen while the witness was on the stand. To this statement by counsel, in the presence of the jury, counsel for Barr excepted, and requested the court to instruct the jury that the statement made by the counsel should not be considered by them, which the court did. It is now insisted that the action of counsel was uncalled for and improper; that the statement was made for the purpose of arousing the sympathies of the jury, as Post and his wife were poor people, and Mrs. Post was compelled to labor for the support of herself and family. We cannot conceive of any reason for counsel making the statement to the court that he did before calling this witness, and if we thought this conduct of counsel influenced the action of this jury in the slightest degree, we would then be prepared to hold that the district court erred in not granting Barr a new trial because thereof. But we do not think it possible that the verdict of the jury was in the least influenced by the statement made by Mrs. Post's counsel. The court at once told the jury that they should not consider the remarks made by counsel, and we cannot therefore say that the court erred in refusing to grant Barr a new trial because of the statement made by Mrs. Post's attorney.
4. The next complaint is of the action of the district court in permitting Mrs. Post on her redirect examination to answer the following question:
Q. What was the condition of Mr. Post at that time?
A. He was sick, very weak; he had had what the doctors call "hemorrhage of the brain," on the 9th of January, and it left him in a very weak condition; and it was a case of necessity that I should try to get something for my little ones to get bread and butter.
It is insisted that this evidence was not only incompetent, but was highly prejudicial, as the record showed that Barr was a man of some means and that Mrs. Post was a poor woman, and therefore it was calculated to prejudice the jury. But the answer to the argument is that the jury were already in possession of the very facts testified to by Mrs. Post in answer to the question made the subject of this assignment. She had already testified to this same state of facts in her examination in chief without any objection being interposed by Barr. It may be conceded that the admission of this evidence was error, but a judgment will not be reversed for the erroneous admission of evidence if the same or similar testimony has already been admitted without objection. (Hanover Fire Ins. Co. v. Stoddard, 52 Neb. 745, 73 N.W. 291; Lamb v. State, 40 Neb. 312, 58 N.W. 963.)
5. One Dr. Holyoke was called as a witness in behalf of Mrs. Post and testified to having treated her for some time immediately after the alleged assault and battery. On his cross-examination counsel for Mr. Barr asked him the following questions:
Q. You have not been paid for your services yet down there, have you, doctor?
Q. Now, doctor, did you ever present a bill for your services in this matter of Mrs. Post's sickness?
The district court sustained objections to these questions, and its action in that respect is the next complaint made here. Mrs. Post had offered no evidence that she had either paid or become liable to pay for any services rendered by this physician. We think, therefore, that the court was right in ruling out this proffered testimony as immaterial.
6. As already stated, the testimony introduced in behalf of Mrs Post tended to show that an operation was performed on her something like a year after the occurrence of the alleged assault and battery and at that time a foetus was removed from her. Barr called Dr. Beachley as a witness in his behalf; and after proving by him that he was a practicing physician, and had been for some years, and was somewhat acquainted with Mrs. Post, and that he was present at the time the operation was performed, and that he went there at the request and to assist one Dr. Crim, Barr's counsel asked him this question: "I will ask you to state what conclusion was reached by the physicians there as to the nature of the ailment of the difficulty that necessitated that operation." The court refused to permit the witness to answer the question, and this ruling is now complained of. We will assume for the purposes of this case that the testimony was competent; that the witness was competent to testify, and that the exclusion of the evidence was error. But another physician for Barr was permitted to testify that he was present when the operation was performed upon Mrs. Post and testify to the conclusions reached by the physicians as to the nature of the ailment that necessitated the operation. This testimony was not attempted to be disputed by Mrs. Post. Counsel for Barr offered to prove by the witness that Mrs. Post's ailment was "tubal" or "extra-uterine pregnancy;" and the other witness for Barr testified that this was the ailment of Mrs. Post. The rejection then by the court of the testimony offered, though erroneous,...
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