Germolus v. Sausser

• Decision Date: 03 May 1901
• Docket Number: 12,613 - (69)
• Citation: 85 N.W. 946,83 Minn. 141
• Parties: AUGUST GERMOLUS v. PETER SAUSSER
• Court: Minnesota Supreme Court

85 N.W. 946

83 Minn. 141

AUGUST GERMOLUS v. PETER SAUSSER

Nos. 12,613 - (69)

Supreme Court of Minnesota

May 3, 1901

Action in the district court for Norman county to recover $5,000 damages for an assault committed by defendant. The case was tried before Watts, J., and a jury, which rendered a verdict in favor of plaintiff for $1,110. From an order denying a motion for a new trial, defendant appealed. Affirmed.

SYLLABUS

Assault and Battery.

In a civil action for an assault and battery, it is held:

Use of Force.

1. To justify the use of force on the ground of self-defense, it is not essential to show that in fact it was necessary to use such force in order to protect the defendant from imminent personal injury; for it is sufficient if it appears that the necessity was real or apparent.

Self-Defense.

2. But the mere belief of the defendant that it is necessary to use force is not alone sufficient to make out a case of self-defense; for the facts as they appear to him at the time must be such as reasonably to justify the belief.

Instruction Immaterial.

3. Upon the defendant's own testimony he was not, as a matter of law, justified in striking the plaintiff; hence it is immaterial whether or not the trial court correctly instructed the jury as to the law of self-defense.

Exemplary Damages.

4. The court did not err in its instructions as to exemplary damages.

Moen & Matson and Miller & Miller, for appellant.

Calkins & Calkins, for respondent.

OPINION

START C.J.

Action to recover damages for personal injuries sustained by the plaintiff by reason of an assault and battery perpetrated upon him November 21, 1899, by the defendant. The defense was that the act was done in self-defense. Verdict for the plaintiff for $1,100, and the defendant appealed from an order denying his motion for a new trial.

All of the assignments of error, which are well assigned, relate to exceptions to the charge of the trial court to the jury. The evidence on the part of the plaintiff tended to show that the defendant made an unprovoked assault upon him, and struck him over the head with the heavy end of a whip stock, whereby the plaintiff was knocked senseless, and sustained serious injuries. The evidence also tends to show that there had been some words between the parties growing out of the fact that the plaintiff, who had been plowing a field lying along the highway, had plowed within the limits of the highway. The plaintiff had stopped his team, and was standing by the side of his plow, some ten rods from the highway, when the defendant struck him. The defendant's own testimony was to this effect:

He [plaintiff] was plowing and when he saw me driving on the highway he stopped his team, and called to me to come over and repeated the call seven or eight times. I stopped my team, and asked him what he wanted. He said, "Come over this way." I got off the wagon, took my coat off, as it was too heavy (this was November 21st), and went over to the plaintiff, and asked him what he was calling to me for; and he swung his whip around, hitting me on the arm, and I jerked it out of his hand, and hit him with it, and then he let himself drop. I had to hit him to protect myself. I had the whip near the stock, and I swung it over and gave it to him.

On his cross-examination he further testified that:

"I said nothing after I left the wagon until I got close to him. Q. What was the first that you said? A. I asked him what he wanted. Q. What did he say? A. He said nothing. Q. What did you say then? A. I said, 'You better stop that.' Q. Stop what? A. Calling me all the time. I did not like being called for nothing. Q. It made you mad, and you went down there? A. Of course, I did not like it, and went down there. I did not get mad until he struck his whip at me. He did not say anything, -- not a word."

He gave further testimony, both upon his direct and cross-examination, but none that materially modifies his version of the encounter as stated in the part of his testimony we have referred to. It also appears that the defendant is a man fifty-five years old, weighing one hundred eighty pounds, and that his wife and son were in the wagon at the time. The son was twenty-four years old weighing one hundred sixty pounds, and followed his father when he started to go to the plaintiff, but the defendant testified that he did not know this fact until after he had struck the plaintiff. The trial court gave to...