Bunten v. Davis

• Decision Date: 06 April 1926
• Citation: 133 A. 16
• Parties: BUNTEN v. DAVIS et al.
• Court: New Hampshire Supreme Court

133 A. 16

BUNTEN

v. DAVIS et al.

Supreme Court of New Hampshire. Coos.

April 6, 1926.

Transferred from Superior Court, Coos County; Marble, Judge.

Action by Ralph E. Bunten against Mary E. Davis and another. Verdict for plaintiff, and ease transferred on defendants' exceptions. Exceptions sustained.

Trespass to personal property. The plaintiff's automobile was injured by rifle shots intentionally discharged against it by the defendants. The defendants sought to justify their conduct on the ground that they were defending their premises from the unwarranted intrusion of the plaintiff and his companions. Trial by jury, and verdict for the plaintiff.

The plaintiff testified that he came to Errol for his health June 5, 1924. That about 2:30 on the morning of July 4th he took five young men to ride in his car. That they rode by the defendants' house, and that the defendants were then beside the road, one with a flashlight and the other with a gun. After the car had gone about 300 yards beyond the house some of the boys in the car exploded sticks of dynamite. That the plaintiff did not know until then that they had dynamite, and he had never heard of any trouble that the defendants had had in previous years. That he immediately turned the car about and started back toward Errol village. That when within about 40 feet of the defendants' house the defendant Leon Davis fired several shots which struck and damaged the car. That the car was not on the defendants' property, but in the highway all the time.

Mary E. Davis testified that she was afraid of dynamite, and believed that exploding it around her premises would cause damage to life and property; that she was at Errol village in the evening, and heard dynamite exploding near the Androscoggin river; that she was afraid that her property might be damaged, and hurried home; that about 10 minutes after she got into the house, which was 9:30 in the evening, a charge of dynamite exploded within 150 feet of her buildings; that it jarred her house, which stood within 50 feet of the state highway; that she then took a flashlight and her son a gun and stood between her house and the highway for the purpose of protecting her property until the shooting took place about 2:30 in the morning; that about 1:30 some young men came toward her house from Errol on foot; that some of them were among those the plaintiff later took to ride in his car; that they went past her house, and then returned and exploded dynamite a short distance below her house; that for the purpose of frightening them Leon fired, and they scampered into the road; that a little later, about.2 o'clock, the car driven by the plaintiff went past her house, and when it got about 300 yards beyond somebody in the car threw out and exploded a dynamite cartridge; that they went up to the next house, about a fourth of a mile beyond, and turned back and exploded some dynamite at about the same place the other was exploded; that as the car got nearly opposite her house it began to slow up, and she said, "Go, along," but they turned in onto her premises; that when they got the car halfway into the driveway Leon told them not to come in, and, when they drove into the yard, he fired at the car at her command.

The defendants offered to show previous experiences on like occasions as constituting grounds for fear of damage to their property on this occasion. It was ruled that they might show all that occurred on the night in question, and all previous instances that could be brought to the plaintiff's knowledge. The rest of the evidence was excluded as being remote and unduly prejudicial, and the defendants excepted.

Warren W. James, of Berlin, for plaintiff.

Sullivan & Daley, of Berlin, Thomas F. Johnson, of Colebrook, and Edmund Sullivan, of Berlin, for defendants.

PEASLEE, C. J. The defendant Mary E. Davis being the chief actor in the occurrences here involved, is spoken of herein as the defendant.

The evidence discloses two quite different versions of the occurrences leading up to the shooting. The plaintiff has argued his case upon the hypothesis that his version is to be taken to be the true one. But as the exceptions here presented relate to the admissibility of further evidence, the question is whether there was anything in the evidence already in the case to warrant the introduction of the offered proof. If it would tend to show a defense, taken in connection with the defendant's other evidence, it could not be excluded because it would not show a defense if the other facts were found to be as claimed by the plaintiff. It is to be considered here upon the assumption that she was acting in defense of her property rather than in reference to the claim of an unwarranted assault upon travelers passing in the highway.

The defendant had the right to make reasonable defense of her property against invasion. Aldrich v. Wright, 53 N. H. 398, 16 Am. Rep. 339. In the determination of the issue thus presented, the defendant's knowledge of facts bearing upon the situation are to be taken into consideration. While the standard of conduct is external, the actor's knowledge is included with other facts in ascertaining the reasonableness of the course pursued. Sevigny v. Company, 125 A. 262, 81 N. H. 311.

The nature of the defense is such that more is involved than merely the defendant's state of mind. In order to make good the defense set up it was necessary that it be made to appear, not only that the defendant entertained certain apprehensions, but also that her knowledge justified her state of mind and the conduct induced thereby. The jury were to be the judges, not only of her belief, but also of the reasonableness of her belief and conduct. To deal with these propositions, it was essential that they be put in her place and supplied with all the facts which she had to consider. Her acts were to be judged in the light of all the circumstances which existed and were likely to influence conduct. State v. Railroad, 52 N. H. 528, 557; Bourass. v. Railway, 74 A. 590, 75 N. H. 359.

Knowledge of the probability of future events is based upon what is known as the past. The defendant's reasonable prognostication of what was likely to happen to her premises upon the night in question is to be tested by the extent of her knowledge acquired by her experience and by the general knowledge of probable action. In the present instance, the general knowledge of the probable action of rational human beings would not account for or excuse the defendant's conduct. It is not a matter of common knowledge that the driver of an automobile who turns into a dooryard does so with a purpose to blow up the buildings there situate. In order to justify her conduct, it was necessary for the defendant to prove the existence of special facts, apparently applicable to the situation which confronted her.

It already appeared that the plaintiff and his fellow occupants in the car were engaged in expressing their sentiments upon the Fourth of July by the explosion of dynamite upon or near the premises of others. The defendant knew these facts. Was it reasonable for her to assume that they intended to make that expression more impressive by doing damage to her buildings? How was she to determine the problem? Was she to confine her cogitations to what had taken place that night, or had she also both the right and the duty to consider what had taken place on prior like occasions? How had the youth of the neighborhood conducted as to property in general, and that of the defendant in particular, on other anniversaries of the same event?

The facts shown by the excluded evidence were of most substantial value in the solution of the problem that faced the defendant when the plaintiff drove into her yard and continued to advance in disobedience of her command that he depart. Without these facts there is but little to justify or excuse the extreme action taken by her. But with them she would present a fair question for consideration by the jury.

In view of these circumstances, the finding that the evidence was too remote to be of value in the trial must be set aside. The evidence was neither remote nor collateral. It bore directly upon the vital issue in the case —the reasonable defense of property—and could not be excluded upon such grounds. Tyler v. Railroad, 44 A. 524, 68 N. H. 331.

The situation presented here is parallel with that in the Tyler Case. In each case the issue was the reasonableness of conduct. In each the offer was to show what certain present manifestations meant to the actor, in view of his or her past experience. In neither case was the actor's conduct justified by the facts of the isolated transaction, and in both the light of former experience explains the action taken.

Unless it could be concluded, as matter of law that the defendant's former experience could not be found to furnish a justification or legal excuse for her conduct, she was entitled to put that experience before the jury. If justification might be found therefrom, it was her legal right to introduce the facts in evidence. Tullgren v. Amoskeag Mfg. Co., 133 A. 4, 82 N. H.? When the issue is the reasonableness of conduct, a narrow limit cannot be put upon the scope of the inquiry into the knowledge and experience of the actor.

The issue of reasonable conduct is not usually proved by direct testimony to that end. It is a conclusion to be drawn by the trier of the fact from other facts that are put before him for his consideration. The appeal is to "the judgment and experience of the jury." Whitcher v. Railroad, 46 A. 740, 743, 70 N. H. 242, 248. Hence it follows that all the surrounding circumstances become facts material to the case, as distinguished from circumstantial evidence from which a conclusion as to the existence of such facts is sought to be drawn'. They are circumstances in proof, but they are not circumstantial evidence.

The question, What class of facts...