Frew v. Teagarden

• Decision Date: 08 April 1922
• Docket Number: 23,670
• Citation: 111 Kan. 107,205 P. 1023
• Parties: WILLIAM S. FREW, Appellee, v. JOHN TEAGARDEN, Appellant
• Court: Kansas Supreme Court

205 P. 1023

111 Kan. 107

WILLIAM S. FREW, Appellee, v. JOHN TEAGARDEN, Appellant

No. 23,670

Supreme Court of Kansas

April 8, 1922

Decided January, 1922

Appeal from Lynn district court; EDWARD C. GATES, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ASSAULT AND BATTERY--In Defense of Servant--Reputation of Plaintiff as Dangerous and Fighting Man--Competent Evidence. In an action to recover damages for an assault committed in defense of a third person, testimony was competent to show plaintiff's general reputation for being a quarrelsome dangerous and fighting man, and that this was known to the defendant.

2. SAME--Defense of Servant or Relative--Rule of Self-defense Applies. Plaintiff made an unprovoked assault upon a man twenty-one years of age who was in the employ of the defendant, and a relative by marriage. The assault occurred on the premises of defendant, who warned plaintiff not to strike the young man. Plaintiff struck him with his fist, and while attempting to strike him again, plaintiff was struck by the defendant with the broadside of a pitchfork, breaking his arm. Held, that the principle of self-defense applies where one resists by force an assault upon a servant or relative.

3. SAME--Erroneous Instruction as to Justifiable Assault. In such a case an instruction that unless the jury found from a preponderance of the evidence that there was reasonable cause by defendant to apprehend that plaintiff designed to commit a felony or to do some great personal injury to the servant, and that there was immediate danger of such design being accomplished, the assault was not justifiable, and the verdict should be for the plaintiff, is held erroneous.

4. SAME--Use of More Force than Reasonably Necessary--Instructions. In such a case an instruction that the defendant would also be liable to plaintiff even if the jury found the assault was justifiable by the defendant if the latter used more force than was reasonably necessary to prevent a felony or to prevent the doing of great bodily harm to the third person, was erroneous, the rule being that one may use in the defense of a third person so much force as reasonably appears to him to be necessary.

5. SAME. In such a case the person's conduct is to be judged by his situation as it reasonably appears to him. (Sloan v. Pierce, 74 Kan. 65, 85 P. 812.)

6. SAME--Great Bodily Harm--Erroneous Instruction. An instruction that great bodily harm means more than mere injury by the fist such as is likely to occur in ordinary assault and battery, held, when taken in connection with the other instructions referred to, erroneous.

7. SAME--Right of Master to Defend His Servant. The general rule recognized that the person who interferes to defend one whom he has a right to defend may go to the same extent that the defended party would be entitled to go in the defense of himself.

John A. Hall, of Pleasanton, for the appellant.

Charles F. Trinkle, of LaCygne, and E. C. Hamilton, of Kansas City, Mo., for the appellee.

OPINION

PORTER, J.:

This case involves, among other questions, the right of a person to go to the assistance of another who is assaulted, and the degree of force he may lawfully use in such defense.

John L. and Ray Teagarden, brothers, live upon and farm land belonging jointly to themselves and their mother. In September, 1919, they had been engaged with a gang of men threshing wheat. The men were quitting work for the day. Among them was Lee Burnett, twenty-one years of age, who was employed on the farm, and who is a relative of John L. Teagarden by marriage. He had come in from the field and was working upon an automobile near the barn. William S. Frew, who lived a short distance from the Teagarden home, drove in from the field on a hayrack with his son. He declined an invitation to stay for supper and said he would go home, but told his son that he would drive down to the barn and settle with Lee Burnett. He drove to the barn, jumped off the wagon, went to Burnett and accused the latter of telling falsehoods about him, which Burnett denied. Frew called Burnett many vile and insulting names. John Teagarden had then come in from the field, and was carrying a pitchfork on his shoulder. He inquired what the difficulty was, and Frew said that Burnett had been lying about him, and that he was there to straighten it up. Teagarden said he thought there was no occasion for trouble. Frew replied that he would not go home until he had settled with Burnett. Teagarden told him they were law-abiding citizens and wanted no trouble. Continuing his abuse of Burnett, Frew advanced in a threatening attitude toward him; Teagarden warned him not to strike Burnett. Frew struck Burnett in the mouth. The latter staggered back some distance but did not fall. The blow cut through Burnett's lip, leaving a scar. Frew, who is left-handed, advanced again towards Burnett and was in the act of striking him when Teagarden struck Frew across the back and left arm with the broadside of the pitchfork, and the result was that one of the bones in Frew's arm was broken. He started towards Teagarden, who warned him not to come any further or he would stick the fork in him. Then followed some friendly conversation between the two men. Teagarden told Frew he was sorry he broke his arm, and Frew said that the Teagardens had been good neighbors of his and had always treated him friendly. He got on his wagon and went home. His arm was placed in splints by a physician; six weeks later when the splints were removed the arm was found to be in a weakened condition; at the trial it was shown that there had not been a complete union of the fracture. This action was brought to recover damages for the injury. There was a verdict and judgment against Teagarden for $ 750, from which he appeals.

There is a complaint of the refusal to admit certain testimony. Defendant offered proof to show that Frew had the general reputation in the community there of being a quarrelsome, dangerous and fighting man, and that this was known to the defendant; also, that a complaint was filed before a justice of the peace charging Frew with...