Eckerd v. Weve
Decision Date | 11 November 1911 |
Docket Number | 17,244 |
Citation | 85 Kan. 752,118 P. 870 |
Parties | WILLIAM ECKERD, Appellee, v. JOHN WEVE, Appellant |
Court | Kansas Supreme Court |
Decided July, 1911.
Appeal from Reno district court.
Judgment reversed.
SYLLABUS BY THE COURT.
1. DAMAGES -- Assault and Battery -- Contributory Negligence. The doctrine of contributory negligence as a defense has no proper application to an action for damages for an assault and battery.
2. DAMAGES--Malice--Question for Jury. While malice may be inferred from the intentional use of a deadly weapon, the inference and the weight to be given to it are for the jury to determine, considering the character of the instrument the manner in which it is used, and all the attendant circumstances.
3. EVIDENCE--Motive of Witness. While the circumstances attending the act of a party are competent evidence of the condition or state of his mind in doing it, his own testimony as to his motive, purpose and intent is also competent.
4. FINDINGS--Inconsistency of. The findings of a jury upon the several items of damages allowed are examined, and it is held that they are inconsistent and can not be harmonized.
F. F. Prigg, C. M. Williams, and F. L. Martin, for the appellant.
F. P. Hettinger, E. T. Foote, and James Hettinger, for the appellee.
This is an action to recover damages for an assault and battery. The answer alleged that the plaintiff made the first assault and that the defendant acted in reasonable self-defense. Judgment was rendered for the plaintiff and the defendant appeals.
The appellee was an employee of the appellant in operating a threshing machine. He was directed to do certain work upon the separator. Because of some criticism of his work he declared that he would quit, but nevertheless immediately accompanied the machine and the appellant's other employees to another place where threshing was to be done, and began a quarrel which the appellant sought to avoid. He used abusive language, saying, among other things, "You ain't got your Winchester with you to-day," and when the defendant said that he could get it if he had to, the plaintiff replied, in substance, "You will need it before you get through with me." The appellant, who was upon the separator, then hurriedly picked up a cylinder wrench from the top of the separator, where it was lying with other tools, and threw it at the appellee, who was standing on the ground near by, striking him upon the head, fracturing the skull and causing serious injuries. Other details, with some of the language used, will be referred to later.
Findings were made by the jury as follow:
The appellant requested instructions to the effect that if the plaintiff was the aggressor and began the quarrel or affray he could not complain because he was met with a too vigorous defense. He requested an instruction:
The argument is made that if a person is guilty of any negligent or wrongful act which naturally produces or tends to produce an injury complained of there can be no recovery. This is not the law as applied to actions of this character. The action is for damages for a willful assault and battery and not for negligence. The doctrine of contributory negligence has no room for application in this case. (1 Thomp. Neg. § 247.)
"An intentional and unlawful assault and battery, inflicted upon a person, is an invasion of his right of personal security, for which the law gives him redress, and of this redress he can not be deprived on the ground that he was negligent and took no care to avoid such invasion of his right." (Steinmetz v. Kelly, 72 Ind. 442, 446.)
The vital question in this case was whether the appellant acted reasonably in self-defense, or willfully and maliciously, in inflicting the injury. (1 Cooley, Torts, 3d ed., p. 286; Trogden v. Henn, 85 Ill. 237; Brown v. Gordon, [1 Gray] 67 Mass. 182; Gutzman v. Clancy, 114 Wis. 589, 90 N.W. 1081, 58 L. R. A. 744.) Upon this question the court instructed the jury:
The appellant requested an instruction upon this point as follows:
"The jury are instructed that in no event can the plaintiff recover in this case unless he proves by a preponderance of the testimony that the defendant injured him on account of the willful, wanton or malicious use of excessive force, and unless the plaintiff has established this fact by a preponderance of the testimony, your verdict should be for the defendant."
The instruction requested apparently restricts the jury to a consideration of the plaintiff's evidence only, in finding whether malice was shown; otherwise it is in harmony with the one given. No error is discovered in any of the instructions given, unless it be in the following:
"If you find from the evidence that the defendant intentionally used a deadly weapon upon the plaintiff, malice, wantonness and willfulness, within the meaning of the...
To continue reading
Request your trial-
Gomez v. Hug
...and conduct. Circumstances attending the act of a party are competent evidence of the state of his mind in doing it. Eckerd v. Weve, 85 Kan. 752, 758, 118 P. 870 (1911). Intent may be shown by acts, circumstances and inferences deducible therefrom. State v. Smith, 4 Kan.App.2d 149, 150, 603......
-
First Nat. Bank in Alexandria v. Ernst
...Co., 141 Minn. 285, 170 N. W. 206;Chambers v. Chambers, 227 Mo. 262, 282, 127 S. W. 86, 137 Am. St. Rep. 567;Eckerd v. Weve, 85 Kan. 752, 758, 118 P. 870, 38 L. R. A. (N. S.) 516. The main question in this case is: Where was the note in suit executed and delivered, and with what intent? Whi......
-
First National Bank In Alexandria
...Edwards v. Svea Fire & Life Ins. Co., 141 Minn. 285, 170 N.W. 206; Chambers v. Chambers, 227 Mo. 262, 282, 127 S.W. 86; Eckerd v. Weve, 85 Kan. 752, 758, 118 P. 870. main question in this case is: Where was the note in suit executed and delivered, and with what intent? While the writer ente......
-
Murray v. Modoc State Bank
...court has concluded that an intention to injure is a prerequisite in battery cases. This is clearly disclosed in Eckerd v. Weve, 85 Kan. 752, 118 P. 870, 38 L.R.A.,N.S., 516. This subject has been thoroughly discussed in earlier decisions of this court and the law is now clear that the fund......