Coleman v. Strohman, No. 90-152

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore URBIGKIT; CARDINE; URBIGKIT
Citation821 P.2d 88
PartiesJames D. COLEMAN, Appellant (Plaintiff), v. Robert W. STROHMAN, Appellee (Defendant).
Docket NumberNo. 90-152
Decision Date21 November 1991

Page 88

821 P.2d 88
James D. COLEMAN, Appellant (Plaintiff),
Robert W. STROHMAN, Appellee (Defendant).
No. 90-152.
Supreme Court of Wyoming.
Nov. 21, 1991.

Les Bowron of Beech Street Law Offices, Casper, for appellant.

John I. Henley of Vlastos, Brooks & Henley, Casper, for appellee.


CARDINE, Justice.

Appellant James Coleman sued to recover damages for personal injuries he suffered when appellee Robert Strohman punched him. The jury found Strohman acted in self-defense when he committed the battery and denied recovery. Coleman appeals the jury's verdict.

The controlling issue here is whether the district court erred in not instructing the jury on Coleman's alternative theory of recovery, which was that Strohman acted negligently in his use of self-defense.

We affirm.

Strohman's seventeen-year-old son rode his motorcycle through the intersection in front of Coleman's house without coming to a complete stop at the stop sign. After first yelling at him, Coleman jumped in his car and chased the young Strohman, who escaped by driving his motorcycle down a ravine. On arriving home, he informed his father (Strohman) of the incident.

About two hours later, a co-worker, who lived across the intersection from Coleman, asked Strohman to come over and work on his wife's car. On his way to the co-worker's house, Strohman, riding a bicycle, noticed Coleman in his front yard. Strohman rode over, laid his bicycle down, and while standing on the sidewalk, asked Coleman if "he was the man [who] was chasing a young fellow on the motorcycle awhile ago."

Page 89

At this point, Coleman and Strohman provided conflicting testimony of the events leading to the altercation. Coleman testified that Strohman hit him without verbal or physical provocation and without warning. Strohman testified that Coleman dropped his shoulder, attempted to hit him, he blocked the swing, and struck Coleman on the left cheek, knocking him to the ground.

The trial court refused to instruct the jury on Coleman's alternative claim that Strohman was negligent in using excessive force to defend himself. The trial court instead gave the following instruction:

"The Defendant, will not be liable to the Plaintiff on his claim of battery if the affirmative defense of self-defense is established. This defense is established if you find both of the following:

"1. The Defendant honestly and reasonably believed (although perhaps mistakenly) that under the circumstances it was necessary for him to use force to protect himself against an actual or apparent threatened harmful contact; and

"2. The Defendant used no more force than a reasonably prudent person would have used under the same or similar circumstances to protect himself against the actual or apparent threatened attack."

The jury observed the witnesses, heard the evidence, deliberated, and returned a verdict finding that Strohman acted in self-defense when he punched Coleman. The jury, in other words, believed Strohman's version of the incident.

Coleman admits that the jury's finding of self-defense bars his claim for battery. Coleman maintains, however, that the trial court should have instructed the jury that "the Defendant negligently used excessive force to repel a perceived attack."

In Tatman v. Cordingly, 672 P.2d 1286, 1289 (Wyo.1983), we stated that the following instruction accurately stated the law of self-defense in Wyoming and its limits:

"Thus, even acting in self-defense, a person may be liable for injury inflicted upon the aggressor. This is the case when the defendant is not justified in his belief that he was in danger, or when the defendant uses excessive force, or when the defender continues to exert force after the aggressor is rendered disarmed or helpless."

We explained in Tatman that a claim of self-defense "must be based upon reasonable grounds." 672 P.2d at 1290. The jury is, therefore, required to apply an objective standard in deciding whether an individual's belief that it was necessary to defend himself was reasonable.

Coleman's theory of negligence depended upon the jury finding that Strohman failed to act reasonably in defending himself and that he used excessive force. The self-defense instruction given required the jury to find that Strohman's use of self-defense was both reasonable and without excessive force. We stated in Weaver v. Mitchell, 715 P.2d 1361, 1363-64 (Wyo.1986), that "[t]he trial court is not obligated to give instructions in the language of their proponent and may refuse proposed instructions, though correct, if the principles embodied in the requested instructions are covered by other instructions."

Appellant claims the court should have instructed the jury that appellant could recover if appellee "negligently used excessive force." Negligence is a failure to act as a reasonable, prudent person in the same or similar circumstances. The instruction given by the court required, to establish self-defense, that appellee must have "honestly and reasonably believed * * * it was necessary for him to use force * * * [and that he] used no more force than a reasonably prudent person would have used under the same or similar circumstances * * *." Although the term negligence is not employed in this type case, the principle for which appellant contends is clearly embodied in the instruction given. Thus, the principle that an individual's use of self-defense must be no more force than a reasonably prudent person would use under the same or similar circumstances was before the jury when it decided the issues presented in this case.

Page 90

It was not error to refuse appellant's instruction on negligence.

The verdict of the jury and the judgment entered thereon are affirmed.

URBIGKIT, Chief Justice, dissenting.

I respectfully dissent. To approve what turned out to be a directed verdict for Robert W. Strohman by the trial court's elimination of a significant claim for recovery is wrong for two valid reasons. Although the second reason, refusal to give a theory of the case instruction, is troubling and, in my opinion, clearly wrong, Barber v. Sheridan Trust & Savings Bank, 53 Wyo. 65, 78 P.2d 1101 (1938), the first reason, a procedural due process denial, is of greater concern.

In this case, both parties pleaded, prepared and tried the case on dual theories for contended recovery by the assaulted appellant, James D. Coleman. Those theories were battery as an intentional tort and negligent infliction of harm as a non-intentional tort. For the first time at instruction conference, the trial court, over the objection of both counsel, withdrew negligence from jury decision. The psychological impact on the jury would certainly have been substantial where, in opening statement and evidence, the jury was presented with two theories to then have the case submitted as only an intentional tort fistfight. In reality, the substantial affect on the jury of the directed verdict which denied the negligence claim from jury review was then under the failed situation of the case to also predetermine the jury verdict on the intentional tort. 1 By instruction given and denied, the jury verdict result becomes procedurally determined on both issues.

I likewise do not find the trial court to have been substantively correct in denial to the litigant of his theory of the case instruction. Smith v. State, 773 P.2d 139 (Wyo.1989); Stapleman v. State, 680 P.2d 73 (Wyo.1984); Alabama Farm Bureau Mut. Ins. Service, Inc. v. Jericho Plantation, Inc., 481 So.2d 343 (Ala.1985); Clary Ins. Agency v. Doyle, 620 P.2d 194 (Alaska 1980); Newell v. Town of Oro Valley, 163 Ariz. 527, 789 P.2d 394 (1990); White v. Uniroyal, Inc., 155 Cal.App.3d 1, 202 Cal.Rptr. 141 (1984); Nelson v. Caterpillar Tractor Co., 694 P.2d 867 (Colo.App.1984); Garrett Freightlines, Inc. v. Bannock Paving Co., Inc., 112 Idaho 722, 735 P.2d 1033 (1987); Martin v. Heddinger, 373 N.W.2d 486 (Iowa 1985); Schallenberger v. Rudd, 244 Kan. 230, 767 P.2d 841 (1989); Moody v. Pulte Homes, Inc., 423 Mich. 150, 378 N.W.2d 319 (1985); Tope v. Taylor, 235 Mont. 124, 768 P.2d 845 (1988); Colorado Environments, Inc. v. Valley Grading Corp., 105 Nev. 464, 779 P.2d 80 (1989); Adams v. United Steelworkers of America, AFL-CIO, 97 N.M. 369, 640 P.2d 475 (1982); Burke v. American Network, Inc., 95 Or.App. 274, 768 P.2d 924 (1989); Kreager v. Blomstrom Oil Co., 379 N.W.2d 307 (S.D.1985); Goode v. Dayton Disposal, Inc., 738 P.2d 638 (Utah 1987); Gammon v. Clark Equipment Co., 104 Wash.2d 613, 707 P.2d 685 (1985); Danco, Inc. v. Donahue, 341 S.E.2d 676 (W.Va.1985). See also Short v. Spring Creek Ranch, Inc., 731 P.2d 1195 (Wyo.1987).

This modest list is only representative of the identically stated multitude of decisions nationwide. We consider here a very basic principle of both justice and fairness in the operation of any judicial system.

This writer remains adamant that the Wyoming judicial system is far too willing to take the case away from the litigants by denial of a theory of the defense or claim.

Page 91

McInturff v. State, 808 P.2d 190, 198 (Wyo.1991), Urbigkit, C.J., concurring in part and dissenting in part. Furthermore, we would normally achieve an earlier final disposition, retain constitutional right to a jury decision and most likely secure enhancement of justice by a more confined and curtailed fact finding function by the trial judge. Denial of the theory of the case or defense instruction moves decision making from the jury to the trial court. Erickson v. Magill, 713 P.2d 1182 (Wyo.1986); Vassos v. Roussalis, 658 P.2d 1284 (Wyo.1983); Barnes v. Fernandez, 526 P.2d 983 (Wyo.1974). The case should not be removed from jury review by the rejection of theory of the case instructions by the litigants. Rather, we should continue the historical philosophy that rights of recovery should be applied in decision by the fact finding jury, Cimoli v....

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1 practice notes
  • Dana v. Anderson, Case No. 14-CV-223-J
    • United States
    • United States District Courts. 10th Circuit. District of Wyoming
    • February 17, 2016
    ...and is, DENIED . An order setting an initial pretrial conference in this matter is forthcoming.--------Notes:1 See Col e man v. Strohman , 821 P.2d 88 (Wyo.1991) (referring to battery as an intentional tort).2 Wyoming statute section 1–3–107 is similar statute to 1-3-114 governing an act, e......
1 cases
  • Dana v. Anderson, Case No. 14-CV-223-J
    • United States
    • United States District Courts. 10th Circuit. District of Wyoming
    • February 17, 2016
    ...and is, DENIED . An order setting an initial pretrial conference in this matter is forthcoming.--------Notes:1 See Col e man v. Strohman , 821 P.2d 88 (Wyo.1991) (referring to battery as an intentional tort).2 Wyoming statute section 1–3–107 is similar statute to 1-3-114 governing an act, e......

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