Carlile v. Bentley

• Decision Date: 21 May 1908
• Docket Number: 15,160
• Parties: CLYDE C. CARLILE, APPELLEE, v. REUBEN J. BENTLEY, APPELLANT
• Court: Nebraska Supreme Court

116 N.W. 772

81 Neb. 715

CLYDE C. CARLILE, APPELLEE, v. REUBEN J. BENTLEY, APPELLANT

No. 15,160

Supreme Court of Nebraska

May 21, 1908

APPEAL from the district court for Franklin county: ED L. ADAMS JUDGE. Reversed.

REVERSED.

Dorsey & McGrew, for appellant.

George W. Prather, contra.

GOOD C. DUFFIE and EPPERSON, CC., concur.

OPINION

GOOD, C. J.

This action was brought by plaintiff to recover damages resulting from an assault and battery inflicted upon him by defendant and for expenses incurred for surgical and medical attendance in treating his wounds. The defense tendered in the answer was, first, a general denial; second, that at the time of the injury complained of the defendant was threatened and assaulted by the plaintiff, who, it is alleged, was a trespasser upon the premises of the defendant, and was resisting the defendant in the lawful exercise of his authority thereon, and that the defendant used no more force than was necessary to repel the attacks of the plaintiff and remove him from the premises of the defendant, and to defend and protect the person and property of the defendant. The reply was a general denial. The plaintiff had judgment, and the defendant appealed.

From the record it appears that the defendant was the owner of a hotel property in Bloomington, Nebraska, and that in September, 1905, he entered into a written contract with the plaintiff, which provided that the plaintiff should operate, conduct and manage the hotel for the defendant; that plaintiff should employ all necessary help, and provide everything necessary for the running of the hotel, except the furniture; that he should collect all that was due from the guests of the hotel, and should pay over to the defendant the sum of $ 7 a week, and that plaintiff should retain all the remainder of the income of the hotel for his services. It was further stipulated that the defendant should have full and complete possession of the hotel and all the furniture therein, and that plaintiff should not claim any right or interest in the hotel property as tenant, leaseholder, or otherwise. The contract also provided that it might be terminated by either party upon one day's written notice to the other party. On Saturday night, the 7th of October, 1905, defendant served a written notice upon the plaintiff to the effect that he would terminate the contract in 24 hours. On Monday morning following he demanded possession of the premises, and a controversy ensued in the dining room of the hotel. There was a dispute as to whether plaintiff would surrender possession at once, and there was a personal encounter, in which no one seems to have been injured. Defendant left the hotel with the avowed purpose of having the plaintiff and his family arrested. A few minutes later he returned, and the parties to the action met in the office of the hotel. It appears that other members of plaintiff's family were making some demonstration toward the defendant, and there is a dispute in the testimony as to whether plaintiff was about to assault the defendant with his fists. It appears that bystanders interfered, and that defendant struck the plaintiff on the head with a heavy iron poker and felled him to the floor. This appears to have been the only blow that was struck in the second controversy. The result of the blow on plaintiff's head was to inflict a wound about four inches long, which cut through the scalp and periosteum, and produced some depression in the skull. The evidence tends to show that plaintiff was a reasonably vigorous and robust man, about 56 years of age, and that he had no business or profession other than that of a common laborer, except during the time that he operated the hotel. It appears that he was unable to perform any labor of any consequence for a period of about three months after the injury, and that for a long time thereafter he was nervous, unable to sleep well, suffered from severe headaches, and was unable to perform labor that required stooping or bending over, without causing him great pain in the head. The jury awarded damages in the sum of $ 725.

The first assignment of error relates to the sufficiency of the petition to recover for any element of damages other than the sum paid for medical attendance. That part of the petition relating to the injury and damages sustained is as follows: "That on the 9th day of October, 1905, the defendant unlawfully made an assault upon the plaintiff, and him, the said plaintiff, did then and there beat, wound, and illtreat by striking plaintiff on the head with a heavy iron stove poker, whereby a deep and dangerous incision about 3 1/2 inches in length was cut in the plaintiff's head, inflicting such a shock upon plaintiff, and so bruising, wounding and injuring him, that ever since said injury, to wit, for the last three months, plaintiff has been unable to attend to his business, and has ever since said injury and by reason of the same suffered great pain of body and mind, and said injuries are of a permanent nature; second, that plaintiff was compelled to expend for the services of a physician and surgeon in dressing and caring for said wound the sum of $ 25, to plaintiff's damage in the sum of $ 2043."

Defendant contends that the petition does not allege that the plaintiff sustained any damages other than that occasioned by the payment of the bill for medical attendance in the sum of $ 25. With this view we cannot concur. The petition is not artistically drawn, and, if a strict grammatical construction were given to it, there might be some merit in this contention. But, taking the petition as a whole, we think it is apparent that the pleader intended to aver that he had sustained damages in the sum of $ 2,043, not by reason of expense for medical attendance alone, but on account of all the facts alleged in the petition, including the bill for medical services. To follow the contention of the defendant and to hold that the petition alleged that the plaintiff was damaged in the sum of $ 2,043 by reason of the payment of the sum of $ 25, and to hold that the allegation of damages had no relation to the other part of the petition, would be to follow the strict letter, and disregard the substance and plain intent of the pleader. The petition is far from being a model of excellence, but to our minds it is sufficient to show that it was the intent and purpose of the pleader to allege that the damages sustained were occasioned by reason of the assault and injury inflicted, and included pain, suffering, loss of time, etc., as well as the payment of $ 25 for medical attendance. Prior to the filing of the answer the defendant filed a motion to require the plaintiff to make his petition more definite and certain, by setting out in what respect plaintiff's alleged injuries were permanent in their nature, the kind of business the plaintiff was engaged in, the earnings or profits plaintiff was accustomed to derive from his business, and the amount of damages which he claims to have suffered from being unable to attend to his business. This motion was overruled. Defendant insists that this motion was sufficient to challenge the sufficiency of the petition to the defect now complained of, but it appears to us rather that the motion was intended to require the plaintiff to specify the nature and extent of his injuries, and to itemize his elements of damages, and that...