Givens v. Berkley
| Citation | 108 Ky. 236 |
| Parties | Givens v. Berkley. |
| Decision Date | 29 March 1900 |
| Court | Court of Appeals of Kentucky |
APPEAL FROM BELL CIRCUIT COURT.
JUDGMENT FOR PLAINTIFF AND DEFENDANT APPEALS. REVERSED.
N. J. WELLER, ATTORNEY FOR APPELLANT.
J. D. BLACK AND O. V. RILEY, ATTORNEYS FOR APPELLEE.
The appellee instituted this action in the Bell Circuit Court seeking to recover judgment against the appellant for an assault and battery alleged to have been committed by appellant upon A. M. Berkley, a boy perhaps about sixteen years of age, the suit being by Gillis Berkley as next friend. The answer of appellant is a plea of son assault demesne, which was controverted by the reply of plaintiff. A trial resulted in a verdict and judgment against the appellant for $1,500, and, his motion for a new trial having been overruled, he prosecutes this appeal.
Numerous grounds are relied on in support of the motion for a new trial, some of which need not be noticed. According to the testimony of plaintiff, the defendant assaulted the boy by striking him on the back of the head with a rock or brick, without sufficient justification. Defendant's proof conduced to sustain his plea that he was striking in self-defense, and that the cause of the difficulty was an injury, or an attempted injury, upon his infant son.
Numerous objections were made by appellant as to testimony offered by plaintiff and admitted by the court. It was error to allow the witness to testify that Burkes once testified in the case on trial, and also in the case of the Commonwealth against Givens. Neither was it competent to prove the financial condition of the father of the injured boy; nor was it competent to prove why, if at all the boy had been dismissed from school. Unless Dr. Kenyon, after a sufficient examination of the boy's head, was able to state that the skull had been fractured, no testimony should have been allowed as to the probable damage which would result from such an injury. It was error to allow the plaintiff to introduce any proof as to defendant having caused the indictment of Miss Brashear. No proof in regard to such proof of indictment on trial should have been admitted. No evidence in regard to any conveyance made by defendant to his wife should have been admitted.
The first instruction given by the court is substantially correct, with the exception that it does not sufficiently show that the defendant had a right to throw, if it reasonably appeared to him to be necessary, and that he did so believe, in order to save his life or his body from great harm, or to so save the life or body of his son, R. Lee Givens. It would also have been proper to have said that, if the conditions indicated were shown to exist, then the jury should find for the defendant. Under the pleading in this case, the burden of proof was clearly upon defendant, and he was entitled to conclude the argument. Goldsberry v. Stuteville, 3 Bibb, 346. Also, see Railroad Co. v. Brown, 13 Bush, 475; Crabtree v. Atchison, 93 Ky., 338, (20 S. W., 260); Walls v. Robb, 15 Ky. Law Rep., 159.
It is alleged that the attorney for plaintiff stated in his argument to the jury that the defendant was worth $10,000, and of this, appellant complained. It does not appear that the statement complained of was excepted to at the time, and besides, there was some proof introduced or attempted to be introduced tending to show that the defendant was a man of considerable wealth. It does not satisfactorily appear that proper exceptions were taken to that evidence. But, inasmuch as the case must be reversed, we deem it proper...
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