Eldred v. Burns et al.

CourtSupreme Court of Oregon
Citation182 P.2d 397,188 P.2d 154,182 Or. 394
Decision Date01 July 1947

1. Where temporary coast guardsmen, assigned solely to patrol of certain property, abandoned their assignment, requested plaintiff seamen on Liberty ship, to accompany them to make an investigation as to prior difficulty between plaintiff and watchman of lumber company and plaintiff was shot by watchman as plaintiff and coast guardsmen continued to advance on property of lumber company after being challenged, plaintiff was a "trespasser" and instruction in action for assault and battery, that plaintiff was not a trespasser was erroneous. O.C.L.A. § 8-312.

See Words and Phrases, Permanent Edition, for all other definitions of "Trespasser".

Assault and battery — Force — Self-defense

2. A person aggrieved by trespass may repel intruder by such force as may be reasonably necessary, short of taking human life or causing great bodily harm, and if, while doing so, trespasser commits any overt act giving one aggrieved reasonable ground to believe himself in imminent danger of losing his life or receiving great bodily harm, he may, in self-defense use a weapon, even to extent of taking life of assailant, if reasonably necessary.

Assault and battery — Aggression — Jury — Personal danger

3. Plaintiff's act of trespass was an act of aggression which jury, in action for assault and battery, was entitled to consider along with all other evidence on question whether watchman had reasonable ground to believe himself in such personal danger as to justify use of a weapon.

Attorney and client — Counsel's statement

4. In action for assault and battery, statement of defendants' counsel that they did not contend that shooting was justified in defense of property did not have effect of taking out of case question of whether plaintiff was trespasser.

Assault and battery — Trespass — Assault — Self-defense

5. If a trespass on property is accomplished by acts that amount to an assault on owner, such as would warrant him in exercising right of self-defense, force he may use will be governed by rules applicable to right of self-defense.

Assault and battery — Threats — State of mind

6. In action for assault and battery committed by watchman, evidence of threats would be admissible to show hostile state of mind even though threats were uncommunicated to watchman.

Assault and battery — Identification card

7. In action for assault and battery committed by watchman employed to guard water front property of lumber company, admission of testimony with reference to Coast Guard identification card of plaintiff, a seaman, employed on vessel moored at dock of "another company and plaintiff's ship's pass" was error, since identification card and pass did not give right to cross property of lumber company.

Assault and battery — Regulations — Entry — Not extended to subordinates

8. Coast Guard regulations permitting captain of the port to enter waterfront facilities at any time did not extend his right to subordinates without his authority to prevent their being trespassers on property entered beyond their assigned area. 1 U.S.C.A. § 1.

Assault and battery — Duly authorized representatives

9. Where Coast Guard regulation permitted "duly authorized representatives" of the captain of the port to enter all waterfront facilities at any times, Coast Guard patrolmen assigned to a specific area were not "duly authorized representatives" so as to permit their entry on property beyond their assigned area without becoming trespassers.

See Words and Phrases, Permanent Edition, for all other definitions of "Duly Authorized Representatives".

Army and navy — Violations — High seas — Land

10. Regulations charging Coast Guard with prevention of violations of laws of the United States on the high seas, in harbors, etc., has no application to activities on land at waterfront facilities.

Army and navy — Coast Guard regulations — Limitation

11. Coast Guard regulations enjoining coast guardsmen to enforce the law relating to the Coast Guard in their sphere of action does not give coast guardsmen power to enforce laws of a state.

Assault and battery — Entry — Not justified

12. Where coast guardsmen left their assigned area and entered the guarded property and there was no evidence tending to indicate suspicion of sabotage, their entry was not justified under the Coast Guard regulations governing reports of sabotage to prevent their being trespassers.

Assault and battery — Jury

13. In action for assault and battery committed by a watchman employed to guard waterfront property, conflicting evidence as to whether approach of coast guardsmen and a companion was menacing and such as to indicate a trespass sufficient to justify shooting in defense by the watchman was for the jury.

Assault and battery — Shoot — Trespasser

14. One may not shoot a trespasser or inflict on him great bodily harm just because he is a trespasser.

Assault and battery — Self-defense — Trespasser

15. In action for assault and battery committed by a watchman, where self-defense was sole issue, question of whether injured party was a trespasser was material in considering whether degree of force used in self-defense was justifiable.


Courts — Appeal — Increasing costs

16. Appeal perfected prior to amendment of Supreme Court rule increasing costs was subject to lower previous costs and was taxed accordingly. Rules of the Supreme Court, rule 19, § 2.

                  See note, 25 A.L.R. 508; 26 Am. Jur. 272 et seq.; 52 Am. Jur
                844; 6 C.J.S., Assault and battery, § 18; 135 A.L.R. 10; 36 Am
                Jur. 263

Appeal from Circuit Court, Multnomah County.


Nicholas Jaureguy, of Portland, (Cake, Jaureguy & Tooze on brief) for appellants.

Nels Peterson and James Landye, both of Portland, (Nels Peterson and Green & Landye, and Thomas H. Tongue, III., on brief) for respondent.

Before ROSSMAN, Chief Justice, and LUSK, BELT, BAILEY, HAY and WINSLOW, Justices.

Action for damages for assault and battery by Claude A. Eldred against Raymond J. Burns and others. A verdict in favor of plaintiff was returned against defendants Raymond J. Burns and others, but no verdict was returned against defendant Kingsley Lumber Company. From an adverse judgment, Raymond J. Burns and others appeal.


WINSLOW, J. (Pro Tempore) This is an action to recover damages resulting from an assault and battery alleged to have been committed by the appellant Raven Blackwolf, a man 67 years of age, employed by the appellant William J. Burns International Detective Agency as a watchman to guard the waterfront property of the defendant Kingsley Lumber Company. The appellant Burns Detective Agency had entered into a contract with the Kingsley Lumber Company to guard this waterfront property and in furtherance thereof employed Blackwolf.

The respondent alleges in his complaint that on the 27th day of February, 1945, the appellant Blackwolf "wilfully and maliciously and wrongfully" shot him through the right arm causing serious and permanent injuries. The appellant Burns Detective Agency answered, admitting that respondent was shot through the arm, but denied that the shooting was "wilful, malicious or wrongful." As an affirmative defense, it was alleged that the respondent was a trespasser on the property of the Kingsley Lumber Company and that Blackwolf, the watchman, being fearful that respondent and his three companions were going to "beat and injure him," accidentally shot the respondent while defending himself and such property. The appellant Raven Blackwolf, in his answer, admitted having shot the respondent through the arm, but denied that it was done in a "wilful, malicious or wrongful" manner. As a further and separate defense, Blackwolf alleged that about midnight on the 27th day of February, 1945, the respondent, accompanied by three companions, was trespassing on the property guarded by him, and, when he called on them to stop, they advanced toward him in a threatening manner, and, being fearful that respondent and his companions were "about to beat and injure him," and while acting in defense of himself and said property, fired the shot that hit the respondent. These affirmative defenses were denied in the reply of respondent.

On the issues thus briefly stated, the cause was submitted to a jury and a verdict returned in favor of the respondent and against the appellants Blackwolf and the copartners doing business under the assumed name of William J. Burns International Detective Agency in the sum of $39,349. No verdict was returned against the Kingsley Lumber Company.

There are several errors in the record which necessitate a reversal of the judgment rendered, chief among them being the instruction given by the court and referred to under appellants' fourth assignment of error to the effect that respondent was not a trespasser on the premises of the Kingsley Lumber Company at the time alleged in the complaint.

In order to correctly interpret this record, it is necessary to consider, from the standpoint of appellants as well as respondent, that it has a war time setting. It cannot be accurately understood without considering this background. Shortly after Pearl Harbor, the Army took over the supervising, guarding and patrolling of the Portland waterfront industries and waterfront facilities. Some time during the war and prior to the incident involved herein, jurisdiction was transferred to the United States Coast Guard.

There is much confusion in the description of the properties involved, by virtue of different witnesses having different ideas as to directions. The description used here will be based upon the hypothesis (slightly erroneous, in fact) that the river and the St....

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5 cases
  • State v. Laurel
    • United States
    • Court of Appeals of Oregon
    • December 30, 1970
    ...770. See also, State v. Bartmess, 33 Or. 110, 54 P. 167 (1898); State v. Trent, 122 Or. 444, 252 P. 975, 259 P. 893 (1927); Eldred v. Burns, 182 Or. 394, 182 P.2d 397, 188 P.2d 154 (1946); Scheuffle v. Newman, 187 Or. 263, 210 P.2d 573 At 6 Am.Jur.2d 77, Assault and Battery § 88, it states:......
  • Linkhart v. Savely
    • United States
    • Supreme Court of Oregon
    • January 24, 1951
    ...upon appearances. State v. Thompson, 49 Or. 46, 88 P. 583; 4 Am.Jur., Assault and Battery, §§ 172, 173, 174, pp. 208, 209; Eldred v. Burns, 182 Or. 394, 182 P.2d 397, 188 P.2d 154; State v. Parker, 60 Or. 219, 118 P. 1011; Davenport v. Silvey, 265 Mo. 543, 178 S.W. 168, L.R.A.1916A, 1240. R......
  • Royer v. Wendland
    • United States
    • Supreme Court of Oregon
    • December 30, 1971
    ...concerned." Defendant argues that trespass was material to the issues involved in this case, and on this basis cites Eldred v. Burns et al., 182 Or. 394, 182 P.2d 397, 188 P.2d 154 (1947), and Scheufele v. Newman, 187 Or. 263, 210 P.2d 573 (1949). From the reading of the entire transcript o......
  • Beville v. Mac K. Falls, Inc., 78-18-L
    • United States
    • Court of Appeals of Oregon
    • November 24, 1980
    ...not amounting to a battery or an imminent threat of the use of hostile force will not justify force in self-defense. Eldred v. Burns, 182 Or. 394, 406, 182 P.2d 397, 188 P.2d 154 (1947). Such words or acts though not justifying the use of actual force in one's defense may be considered by t......
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