Courvoisier v. Raymond

• Decision Date: 21 September 1896
• Citation: 23 Colo. 113,47 P. 284
• Parties: COURVOISIER v. RAYMOND.
• Court: Colorado Supreme Court

47 P. 284

23 Colo. 113

COURVOISIER v. RAYMOND.

Supreme Court of Colorado

September 21, 1896

Appeal from district court, Arapahoe county.

Action by Edwin S. Raymond against Auguste Courvoisier for personal damages. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Edwin S. Raymond, appellee, as plaintiff below, complains of Auguste Courvoisier, appellant, and alleges that on the 12th day of June, A. D. 1892, plaintiff was a regularly appointed and duly qualified acting special policeman in and for the city of Denver; that, while engaged in the discharge of his duties as such special policeman, the defendant shot him in the abdomen, thereby causing a serious and painful wound that in so doing the defendant acted willfully, knowingly and maliciously, and without any reasonable cause. It is further alleged that, by reason of the wound so received plaintiff was confined to his bed for a period of 10 days during which time he was obliged to employ, and did employ, a physician and nurse, the reasonable value of such services being $100, which sum the plaintiff had obligated himself to pay; that the wound rendered him incapable of performing his duties as special policeman for a period of three weeks. It is further alleged that the injury caused the plaintiff great physical pain, and permanently impaired his health. Plaintiff alleges special and general damages to the amount of $30,150, and asks judgment for that sum, with costs. The defendant, answering the complaint, denies each allegation thereof, and in addition to such denials pleads five separate defenses. These defenses are all, in effect, a justification by reason of unavoidable necessity. A trial resulted in a verdict and judgment for plaintiff for the sum of $3,143. To reverse this judgment, the cause is brought here by appeal.

Oscar Reuter and William Young, for appellant.

F. J. Hangs and S. S. Abbott, for appellee.

HAYT C.J. (after stating the facts).

It is admitted, or proven beyond controversy, that appellee received a gunshot wound at the hands of the appellant at the time and place designated in the complaint, and that, as the result of such wound, the appellee was seriously injured. It is further shown that the shooting occurred under the following circumstances: That Mr. Courvoisier, on the night in question, was asleep in his bed, in the second story of a brick building, situate at the corner of South Broadway and Dakota streets, in South Denver; that he occupied a portion of the lower floor of this building as a jewelry store. He was aroused from his bed, shortly after midnight, by parties shaking or trying to open the door of the jewelry store. These parties, when asked by him as to what they wanted, insisted upon being admitted, and, upon his refusal to comply with this request, they used profane and abusive epithets towards him. Being unable to gain admission, they broke some signs upon the front of the building, and then entered the building by another entrance, and, passing upstairs, commenced knocking upon the door of a room where defendant's sister was sleeping. Courvoisier partly dressed himself, and, taking his revolver, went upstairs, and expelled the intruders from the building. In doing this he passed downstairs, and out on the sidewalk, as far as the entrance to his store, which was at the corner of the building. The parties expelled from the building, upon reaching the rear of the store, were joined by two or three others. In order to frighten these parties away, the defendant fired a shot in the air; but, instead of retreating, they passed around to the street in front, throwing stones and brickbats at the defendant, whereupon he fired a second, and perhaps a third, shot. The first shot fired attracted the attention of plaintiff, Raymond, and two deputy sheriffs, who were at the tramway depot across the street. These officers started towards Mr. Courvoisier, who still continued to shoot; but two of them stopped, when they reached the men in the street, for the purpose of arresting them, Mr. Raymond alone proceeding towards the defendant, calling out to him that he was an officer, and to stop shooting. Although the night was dark, the street was well lighted by electricity, and, when the officer approached him, defendant shaded his eyes, and, taking deliberate aim, fired, causing the injury complained of. The plaintiff's theory of the case is that he was a duly-authorized police officer, and in the discharge of his duties at the time; that the defendant was committing a breach of the peace; and that the defendant, knowing him to be a police officer, recklessly fired the shot in question. The defendant claims that the plaintiff was approaching him at the time in a threatening attitude, and that the surrounding circumstances were such as to cause a reasonable man to believe that his life was in danger, and that it was necessary to shoot in selfdefense, and that defendant did so believe at the time of firing the shot.

The first error argued brings up for review the action of the district court in overruling a challenge interposed by the defendant to the juror Gibbons. The ground of this challenge will appear from the following: 'Q. Have you served as a juror within the year last past? A. I was called a few weeks ago on one case in the county court. Q. As a talesmen? A. Yes, sir. The Court: When did you serve, Mr. Gibbons? A. A few weeks ago. The Court: Since the 1st of January? A. Yes, sir.' The statute relied upon to support the challenge reads as follows: 'The fact that any juror in any district or county court shall have served as a juror of the regular panel, or as talesman, in either of said courts at any time within the year next preceding shall be a sufficient excuse for such juror from service in the same court and may also be ground for challenge for cause to such individual juror.' Sess. Laws 1889, p. 220, § 1. The statute limits the exception to service a second time within the year in the same court, and we think it was likewise intended to thus restrict this ground of challenge for cause. This has been the uniform practice under the statute, and we think it must be upheld as the obvious meaning of the act.

The second error assigned is upon the overruling of defendant's objections to certain hypothetical questions propounded by plaintiff to medical experts. These questions called for the opinion of the witnesses as to the natural result of the wound received by plaintiff. It is claimed that the questions do not describe the wound with sufficient certainty, and that the evidence of the extent of the injury is not sufficient to form a basis for any hypothetical questions, or for expert opinions upon the probable effects of the wound. We think the...