Carmichael v. Dolen

• Decision Date: 03 January 1889
• Citation: 25 Neb. 335,41 N.W. 178
• Parties: CARMICHAEL v. DOLEN.
• Court: Nebraska Supreme Court

25 Neb. 335

41 N.W. 178

CARMICHAEL

v.DOLEN.

Supreme Court of Nebraska.

Jan. 3, 1889.

Syllabus by the Court.

1. A. brought an action against B. in May, 1884, in which he alleged that on or about the 29th of October, 1883, the “defendant unlawfully made an assault upon the plaintiff, and him, the said plaintiff, did then and there beat and ill treat, by striking and by shooting in the abdomen, so that he has been unable to attend to his lawful business,” etc. Summons was not served until December, 1884. Afterwards an amended petition was filed, in which it was alleged that the “defendant, being somewhat under the influence of liquor, which the defendant knowingly and intentionally drank, took from his pocket a pistol or revolver, in disregard to the lives and safety of the persons in said saloon, flourished and displayed the same in a negligent and careless manner, * * * and negligently and carelessly discharged said pistol or revolver while the same was pointed at this plaintiff, and thereby the plaintiff was wounded and shot through the body, without fault or negligence on his part,” etc. Held, that the cause of action, the shooting, being the identical charge in both cases, the amendment was properly allowed.

2. A person who unlawfully shoots another, and wounds him, whether intentionally or through negligence, is liable for the damages thereby sustained by the party injured.

Error to district court, Saline county; BROADY, Judge.Thurston & Hall and Dawes, Foss & Stephens, for plaintiff in error.

L. W. Colby, Hastings & McGintie, and Hazlett & Bates, for defendant in error.

MAXWELL, J.

On the 3d day of May, 1884, the plaintiff filed a petition in the district court of Saline county against the defendant, to recover damages for unlawfully assaulting the plaintiff; “and him, the said plaintiff, did then and there beat and ill treat, by striking and by shooting in the abdomen, so that he has been unable to attend to his lawful business since said 20th day of October, 1883; and other wrongs, then and there committed upon him, the said plaintiff, whereby he was made to suffer great pain, both in body and mind, to the damage of the plaintiff to the amount of $10,000. (2) Plaintiff complains of the defendant, for that said plaintiff was compelled to expend, and has expended and paid out, the sum of $850, in and about nursing the said plaintiff, and in endeavoring to be cured of the said wounds as aforesaid occasioned, to the damage of the plaintiff to the sum of $10,000.” The amount of damages claimed in the prayer is $10,000. The summons first issued in this case was returned without being served, and an alias issued, but not served, within a year from the time the cause of action accrued; service not having been obtained until December 27, 1884. The defendant afterwards appeared, and filed a motion to require the plaintiff to amend his petition, by stating fully and specifically the items of expense for nursing, etc., incurred by the plaintiff in being cured of his injuries. Afterwards, and before a ruling on the motion, the defendant filed a general demurrer to the petition. The motion and demurrer were submitted together to the court, and both were overruled. In October, 1885, the plaintiff asked and obtained leave to file an amended petition. No objection seems to have been made by the defendant to this order. The amended petitionis as follows: “That on the 29th day of October, 1883, the defendant at De Witt, Saline county, and state of Nebraska, and on the evening of said day, in a saloon kept by one Charles B. Bailey, being somewhat under the influence of liquor, which the defendant had knowingly and intentionally drank, took from his pocket a pistol or revolver, and, in disregard of the lives and safety of the persons then in said saloon, flourished and displayed the same in a negligent and careless manner; that this plaintiff was at said time a peace-officer, and was present in said saloon as such, by the request of the proprietor of the same, to prevent disorder and preserve the peace; that, when the defendant so drew and flourished his said pistol or revolver, this plaintiff started towards him for the purpose of inducing him to replace the same in his pocket; that while so advancing the defendant negligently and carelessly discharged said pistol or revolver, while the same was pointed at this plaintiff, and thereby the plaintiff was wounded and shot through the body, without any fault or negligence on his part; that said wound and injury was caused wholly by the negligence and carelessness of said defendant in handling his said pistol or revolver; that the plaintiff was thereby dangerously wounded, and diseased, and was confined to his bed for about the period of three months; that he has suffered great bodily and mental pain and agony; that he has been thereby permanently disabled, and made a cripple for life; that prior to said injury he was a strong and able-bodied man, and able to provide for himself and family; that by reason of said injury he has become permanently crippled and disabled, and unfitted to perform any ordinary manual labor; that in the treatment and necessary care and attention of said wound, and of himself while suffering from the effect of the same, he has expended large sums of money, and incurred liabilities for physician's services, medicines, and nursing, and other services of a like character, in the sum of $850; that he has been injured in the premises in the sum of $10,000.” The defendant filed a motion to strike this petition from the files, for the reason that the cause of action was not the same as that set forth in the original petition. The motion was overruled, to which the defendant excepted, and now assigns the same for error. The defendant in his answer pleads: (1) Self defense; (2) that he is a resident of Gage county; and (3) denies the facts stated in the petition. On the trial of the cause the jury returned a verdict in favor of the plaintiff for the sum of $2,000, and made certain special findings, which are not material to be considered. The defendant filed a motion for judgment, notwithstanding the verdict. This motion the court sustained, and dismissed the action, upon the ground that the cause of...