Fostbinder v. Svitak
| Decision Date | 08 October 1884 |
| Citation | 20 N.W. 866,16 Neb. 499 |
| Parties | CASPER FOSBINDER, PLAINTIFF IN ERROR, v. JOSEPH SVITAK, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Colfax county. Tried below before MORRIS, J., sitting in absence of POST, J.
REVERSED AND REMANDED.
C. J Phelps, for plaintiff in error.
H. C Russell and E. F. Gray, for defendant in error.
The defendant in error commenced this action in the district court for damages resulting from personal injuries inflicted upon his minor son by the plaintiff in error, whereby he was deprived of the labor of his said son, and was also compelled to expend money in and about the nursing and curing of said son. The injury is alleged to have been inflicted by shooting the son in the leg, thereby breaking the bone of the leg, which became and was a permanent injury.
To the petition, alleging substantially these facts, the plaintiff in error answered, denying the assault, alleging that what he did was done in defense of himself and his premises, which were invaded by the defendant in error, his son, and others, and that in such invasion they made an assault upon him which he resisted as he had a lawful right to do. The answer also alleges by way of a counter-claim, that at the time of the alleged assault the defendant, his son, and others invaded his premises and made an assault upon him, and beat him, breaking his arm and otherwise injuring him by which he was damaged, etc., and demands judgment. Upon the trial of the cause the evidence was conflicting as to the circumstances of the alleged assaults, but upon the question of the extent of the injuries there was no material conflict. The evidence shows that the defendant in error and several others, including the injured son, were seeking to pass over the land of plaintiff in error, when plaintiff in error appeared with a gun and forbade the passage. A contest followed, in which the son of defendant in error was shot, and other injuries inflicted; and the plaintiff in error received a broken arm and other serious and painful wounds and bruises. On the trial each of the parties supported their respective theories of the case by more or less testimony, each claiming the other was the aggressor. The verdict of the jury was in favor of the defendant in error, who was plaintiff below.
The briefs submitted by counsel are not so exhaustive as is usually presented by them; hence some important questions presented by the record, but not referred to in the briefs, will not be considered.
On the cross-examination of Joseph Svitak, Jr., who was a son of the defendant in error, and present at the time of the affray, in referring to the contest, the following occurs:
Q. You had left the road had you not, and gone around the north end of the board that you described, and gone up north-west up to the south-west side of the creek, did you not?
Objected to as assuming that which had not been proven, and a complication that is calculated to mislead. Objection sustained. Defendant excepts.
Q. You saw the old board across the road did you not?
A. Yes, sir, the road was leading to the house.
Q. You knew a few rods down south of that was a traveled road leading from the county road up past Fosbinder's land, and up past Fosbinder's house, and over to your land did you not?
Objected to as not proper cross-examination. Objection sustained. Defendant excepts.
The evidence shows that this witness was with the defendant in error in coming on to the land of the plaintiff in error. That he was driving the team to the wagon in which the Svitaks were riding, that the land over which they proposed passing was plowed and sown in grain That a board or guard had been placed there as a warning to people to keep off, that they had driven around the board and were going on when plaintiff in error appeared with his gun, and that this witness first got out of the wagon and went toward plaintiff in error. The creek referred to had been shown to be running in a south-easterly direction. In view of these facts the cross-examination was proper for the purpose of showing the surrounding and attendant facts and circumstances.
Objection is also made to the ruling of the court in sustaining objections to questions propounded to plaintiff in error during his examination in chief while upon the witness stand. As no statement or offer of proof was made we cannot hold that the objection was wrongfully sustained.
The principal complaint of plaintiff in error is, as to the manner in which the case was submitted to the jury by the instructions of the court.
By the amended transcript it appears that all the instructions given by the court were severally excepted to as well as the rulings of the court in refusing to give the instructions asked by the plaintiff in error.
The plaintiff in error asked the following instruction, which was refused by the court:
This instruction should have been given. It correctly states the law. It is well settled that one may by reasonable force defend his property or premises as well as his person.
In Field on Damages, § 616, it is said that it is a complete defense...
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