Cowperthwait v. Brown
| Decision Date | 16 September 1908 |
| Docket Number | 15,271 |
| Parties | SAMUEL J. COWPERTHWAIT, APPELLEE, v. ISRAEL W. BROWN, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Pawnee county: WILLIAM H KELLIGAR, JUDGE. Affirmed.
AFFIRMED.
Francis Martin and J. C. Dort, for appellant.
Story & Story, contra.
FAWCETT C. CALKINS and ROOT, CC., concur.
This action was brought in the district court for Pawnee county to recover damages for an assault. The petition is in the usual form. The answer is a general denial, coupled with an allegation that "the plaintiff unlawfully and against the will and wishes, and against the protest of this defendant, entered upon the premises of this defendant, and was in the act of trespassing thereon, and this defendant, finding the plaintiff in the act of trespassing upon defendant's premises, ordered plaintiff to depart therefrom, but the plaintiff, being of a pugnacious and quarrelsome disposition, which was well known to this defendant, refused to depart, and assumed a defiant and hostile attitude toward this defendant, and made a demonstration with his clenched fists as if about to assault this defendant, and thereupon this defendant, in self-defense, and to enforce his authority over his own premises, and for no other reason, removed said plaintiff from the premises of defendant, where the plaintiff was then trespassing, and in the removal of said plaintiff from said premises this defendant used no more force than was actually and reasonably necessary." The reply is a general denial. There was a trial to the court and a jury, which resulted in a verdict in favor of the plaintiff for $ 150. From the judgment thereon this appeal is prosecuted.
Defendant assigns 38 errors. The first 22 refer entirely to the sustaining and overruling of objections to the admission of evidence. We have read the record, and have been unable to find any prejudicial error in any of the rulings complained of in these 22 assignments.
Assignments 23 to 26, inclusive, relate to instructions given by the court on its own motion, and 27 to 31, inclusive, to instructions asked for by plaintiff, and given. The four instructions given by the trial court on its own motion are excepted to in the motion for new trial in one paragraph as follows: "(9) The court erred in giving the first, second, third and fourth paragraphs of the instructions given by the court on its own motion." The five instructions asked by plaintiff, and given, are excepted to in the motion for new trial in one paragraph as follows: "(7) The court erred in giving the first, second, third, fourth and fifth paragraphs of the instructions asked for by the plaintiff." These assignments in the motion for new trial were not sufficient to lay the foundation for a consideration of the instructions here further than to ascertain whether any one of the instructions in either group correctly stated the law. City of South Omaha v. Powell, 50 Neb. 798, 70 N.W. 391, is exactly in point, and states the well-settled rule in this state. In that opinion, speaking through Mr. Justice NORVAL, we said: "Similar assignments in motions for new trial have been held insufficient repeatedly, and that they would be considered by the appellate court to the extent alone of ascertaining if any one of the instructions was correct in each group given." We have examined the instructions in each of the groups in the case before us sufficiently to know that they were not all erroneous in either group, and, hence, these assignments must be held to be unavailing.
The 34th assignment is: "The verdict is contrary to law." Such assignment raises the question whether the verdict is contrary to the law as contained in the charge given by the court to the jury, but nothing more. Drexel v. Daniels, 49 Neb. 99, 68 N.W. 399. In the present case we think the verdict is clearly within the law as contained in the charge given by the court. Assignments 32, 36 and 37 are formal only. This leaves the only questions for consideration on this appeal the thirty-third, thirty-fifth and thirty-eight assignments, that "the verdict is not sustained by the evidence," that "the damages awarded are excessive," and "the verdict was the result of bias and prejudice."
The evidence discloses the following facts: Plaintiff is engaged in the livery business in Pawnee City, while defendant is living on a farm some six or seven miles in the country. Prior to engaging in the livery business in Pawnee City plaintiff was also engaged in farming, and was a near neighbor to defendant. Some 10 or 12 years prior to the date of the assault, defendant's son married plaintiff's stepdaughter, Nancy. Plaintiff and his wife, Nancy's mother, have been living together as husband and wife for 27 years. Prior to her marriage, Nancy lived with plaintiff and her mother as their child. About 10 years prior to the assault, defendant sold his son Charles some land near defendant's home, upon which Charles built a dwelling by reconstructing and adding an addition to an old building which stood upon the land, and also built a new barn; at least $ 300 of Nancy's money going into the construction of those buildings. The land was sold to Charles under a written contract. Charles seems to have been an industrious and successful farmer, doing business with his father and a brother; the bank account being in the name of the three, against which each checked without restraint. Some years prior to the time of the assault, Charles became afflicted with rheumatism. He seems to have suffered greatly from this affliction. His father was faithful to him, and manifested a father's affection by sending him to Sycamore Springs on two different occasions for treatment. This treatment producing no favorable results, it was decided to send him to the Hot Springs for prolonged treatment. Prior to going to the Hot Springs, Charles stated to his father that he would be unable to keep up the payments on the land, would be unable to carry through the deal, and delivered up his contract to his father and turned over the possession of the land. He then went to Hot Springs and remained there for two years. During all of the time he was at the Hot Springs, his wife, Nancy, worked in a restaurant and took in sewing to help support herself and husband; the defendant supplying whatever additional funds were necessary for that purpose. When Charles and his wife went to Hot Springs, they left all of their furniture in the house on the farm, and left one key with the defendant and another with the plaintiff. Defendant and his wife stored the furniture, carpets and other household effects in one room of the house. The house remained in that condition until the return of Charles and his wife from the Hot Springs a few days prior to the assault. When it was decided that Charles was to return defendant's wife went to the house formerly occupied by Charles and Nancy, cleaned the house thoroughly, relaid the carpets, put the furniture all in order; in fact, thoroughly prepared the house for the return of their son and his wife. On the day when Charles and his wife returned to Pawnee City, defendant was in town, expecting to meet them and take them out to their home. He found that Charles and his wife were stopping at the home of plaintiff. Charles informed his father that they were not ready to go out that day; that his wife wanted to have some dental work done first. Some two or three days later defendant again went to Pawnee City for the purpose, as he states, of taking his son home. Not finding Charles in town, he telephoned plaintiff's residence, and was informed by a daughter of plaintiff that Charles and Nancy were out in the country visiting some relatives;...
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