Jahner v. Jacob

• Decision Date: 06 May 1975
• Docket Number: No. 9088,9088
• Citation: 233 N.W.2d 791
• Parties: Frances JAHNER, Executrix of the Estate of Mathias Jahner, Plaintiff-Appellee, v. Valentine JACOB, Defendant-Appellant.
• Court: North Dakota Supreme Court

Page 791

233 N.W.2d 791

Frances JAHNER, Executrix of the Estate of Mathias Jahner Plaintiff-Appellee, v. Valentine JACOB, Defendant-Appellant.

No. 9088.

Supreme Court of North Dakota.

May 6, 1975.

Rehearing Denied June 24, 1975.

Certiorari Denied Oct. 6, 1975. See 96 S.Ct. 134.

Syllabus by the Court

1. Party asserting self-defense has burden of showing facts from which such defense might reasonably be inferred.

2. Justifiable force used in self-defense is that force which is no greater than that which the person relying on such justification reasonably believed to be necessary to prevent bodily injury to himself under the circumstances.

3. Questions of reasonableness of defendant's belief of being in danger of bodily injury and reasonableness of his belief as to the need for the amount of force he has used are relevant factors in determining whether force actually used was justified as self-defense.

4. Question of reasonableness of defendant's belief in using force in self-defense is one for the trier of fact.

5. Findings of fact will be recognized as such even though they may be denominated by their placement as conclusions of law.

6. Where question is whether trial court in case tried without a jury applied proper law in reaching its conclusions of law, reviewing court will not overturn presumption that proper law was applied where findings of fact from which conclusions issued were sufficiently specific so that they necessarily imply that proper rules of law were, in fact, applied.

7. Findings of fact of trial court will be upheld on appellate review unless they are clearly erroneous. Rule 52(a), N.D.R.Civ.P.

8. Reviewing appellate court will not presume that error was committed by trial court.

9. Where error in trial court has not been brought to the attention of appellate court by the parties, appellate court will not review such error except in those cases where such error is obvious or plain error affecting the substantial rights of one of the parties.

10. Under the facts in this case, trial court's finding that defendant used excessive force under the circumstances such as to preclude any justification upon the ground of self-defense was not clearly erroneous.

11. Hospital records are not excluded from admissibility under the business records exception to the hearsay rule, as codified in Section 31--08--01, N.D.C.C., when such records meet the requirements for trustworthiness.

12. Business records exception to hearsay rule as codified in Section 31--08-- 01, N.D.C.C., is to be liberally construed for the purpose of enlarging the operation of said business records exception.

13. Under the circumstances in this case, hospital records were admissible under Section 31--08--01, N.D.C.C., although individual portions of such records were subject to challenge as being without the ambit of the section.

14. Self-serving statements in hospital records by party to action which are offered to establish cause of injury as a result of which hospitalization was necessitated or to establish liability as against other party to action are not admissible in action over objection, although such statements may be admissible under some circumstances where statements, at time they were elicited, were made to aid in the diagnosis and treatment of the declarant.

15. Appellate court will not reverse judgment of trial court in nonjury case because of admission of incompetent evidence, unless all of the competent evidence is insufficient to support the judgment or unless it affirmatively appears that the incompetent evidence induced the trial court to make an essential finding which would not otherwise have been made.

16. No error in admission of evidence is ground for setting aside a judgment unless refusal to set aside judgment appears to the court inconsistent with substantial justice. Rule 61, N.D.R.Civ.P.

17. Even if, on a hypertechnical basis, error appertained in this case when trial court admitted In toto hospital records containing objected to opinions of physicians and objected to self-serving statements of party, such error would be harmless error in light of fact that case was tried to court without jury and court can be expected to sift through evidence and rely only upon admissible evidence in reaching its decision.

18. Testimony of predecessor party to action preserved in transcript of preliminary examination of prior criminal action is admissible in action arising out of same facts, where party objecting to such testimony had opportunity to cross-examine at preliminary examination and where this court had ruled in prior criminal action that such testimony was reliable and admissible.

19. In reviewing allegations of insufficiency of evidence to support findings of facts of trial court the main issue is whether or not findings are clearly erroneous in that after a review of the entire record, appellate court is left with firm conviction that mistake has been made in trial court's findings of fact as promulgated.

20. In the instant case, trial court's findings of fact are supported by substantial evidence in light of review predicated upon question of whether findings are clearly erroneous.

21. Trial court's finding that cost of replacement of services for predecessor plaintiff was proper element of damages was not clearly erroneous.

William R. Mills, Bismarck, for defendant, appellant.

Wheeler, Wolf, Wefald & Durick, Bismarck, for plaintiff, appellee; argued by Albert A. Wolf, Bismarck.

SAND, Judge.

This is an appeal by defendant Valentine Jacob from a judgment for damages in favor of the plaintiff, Estate of Mathias Jahner, rendered by the district court of Emmons County in a trial without jury for injuries sustained as a result of a civil battery by Jacob upon Jahner. Previously, a criminal action arising out of the same situation was appealed and decided by this Court in State v. Jacob, 222 N.W.2d 586 (N.D.1974).

Jacob contends that a new trial should be granted on eight grounds, which will be stated in the discussions following.

The basic, uncontested facts may be summarized as follows:

Math Jahner and Valentine Jacob, each separately owned or helped operate separate but adjoining farms in Emmons County, were neighbors and knew each other all of their lives. On the morning of October 9, 1973, Valentine Jacob was repairing a fence on a farm. At about 9:15 in the morning Jahner drove his pickup to where Jacob was, made a U-turn, parked on the opposite side of the road, got out of the vehicle, and came over to Jacob. An altercation took place in which Jahner sustained injuries. Jahner brought this action, but passed away while it was pending, whereupon his executrix was substituted as party plaintiff. This action is not for wrongful death.

The testimony is not in harmony as to what precipitated the altercation. The testimony relating to the altercation consists primarily of the transcript of Jahner's testimony given at the preliminary hearing in State v. Jacob, the criminal case referred to above, and the testimony of Jacob given during the trial of the instant case.

The testimony of Mathias Jahner at the preliminary hearing, in condensed form is as follows:

The evening before the altercation took place, Jahner saw somebody working at the place where the altercation occurred. When he drove up there in the morning he first thought it was Ray (the son of Jacob) who was working there. He had seen people working there the night before. Jahner thought they were closing up the approach which had been cut out about three weeks before. He just drove up there to see if there was an opening to haul two or three loads of hay, because it was about to rain and drizzle. When he came there he saw it was Valentine Jacob, and not his son Ray. Jahner never and an argument with Valentine in his life. After he got out of the truck he walked over to Jacob and said, 'Good morning, I thought we were going to haul our hay today.' Jacob came over to him and replied, 'You came at the right time.' Jahner then got a beating from Jacob. Jahner did not try to hit Jacob. Jahner is 64 years of age, 5 , and weighs about 155 pounds. Jacob hit Jahner about the face, shoulders and body with his fist. Jahner didn't think we would get a beating from Jacob by just talking and saying good morning to him. Jahner also testified, 'Gosh, I just got the beating and that's all. I don't know any more where all the places were or what.' Jahner, after the beating, managed to drive home, and from there he was taken to the Clinic and then later to the hospital.

The testimony of Valentine Jacob at the trial in the instant case, in a condensed form, is as follows:

When Jahner came up to him he was working on a fence; that Jahner had driven up in truck, made a U-turn and parked on the opposite side of the road; that when Jahner came up and hit him in the body once and pushed him against the fence post, Jacob said, 'That is all I help you out all them years, that is all I get from you? Then I grabbed him (Jahner).' Jacob further testified that as he grabbed Jahner he turned him around with his left hand and hit him with his right hand across the shoulder and neck while Jahner was hanging on; that after he had turned Jahner around, Jahner wasn't hitting any more, that Jacob hit Jahner three or four times with his fist, and then he (Jacob) let Jahner loose. He further testified that while Jahner was being hit and was going down Jahner said, 'Let me go and I will build the approach another place.' Jacob also testified (in justification) as follows: 'Well, if I hadn't hit him he (would have) hit me. He (would) beat me up. Yeah, maybe I let him loose he hit me again.' Jacob testified that he was concerned over the fact that Jahner drove his pickup in the manner that he did and turned it around and parked it on the other side of the road.

Jacob pleaded self-defense in his answer to the complaint.

Jacob contends that the trial...