James v. Hayes

• Decision Date: 08 June 1901
• Docket Number: 11,845
• Citation: 65 P. 241,63 Kan. 133
• Parties: T. M. JAMES v. WM. H. HAYES
• Court: Kansas Supreme Court

65 P. 241

63 Kan. 133

T. M. JAMES v. WM. H. HAYES

No. 11,845

Supreme Court of Kansas

June 8, 1901

Decided January, 1901.

Error from Shawnee district court; Z. T. HAZEN, judge.

STATEMENT.

JAMES and Hayes owned and occupied as residences adjoining premises in Topeka. A controversy had existed for a considerable time as to the correct location of the boundary line between them. A recent survey by the county surveyor had placed this line far over upon James's lot, but the latter contended that the survey was erroneous and that Hayes was not entitled to establish the division line where it had been located by this survey. No hard words had passed between them, however, and each seemed willing to abide the further action of the courts or legally constituted authorities. One morning, soon after the survey, Hayes, for the purpose, as he says, of locating or relocating a post which had formerly stood upon the ground claimed by James, but which by the survey was thrown upon Hayes's side of the division line, drove a stake where he thought the post had been. He then went to his house, but soon returned to the place with a shovel and commenced to dig, hoping to find the foot of the old post which he claimed had been broken off. He had thrown out but two or three shovels of dirt when James came from his house with a loaded double-barrel shot-gun. He had observed the movements of Hayes and, thinking there might be trouble, had looked around for something with which to defend himself, but seeing nothing at hand he had passed into the house and procured the shot-gun, which he found loaded. Approaching within about twenty or thirty feet of Hayes he spoke to him and some conversation ensued. The evidence is conflicting as to just what was said. The interview had continued but a short period when James discharged the gun at Hayes, the load striking him in the left side and making an ugly wound across the short ribs and connecting cartilages. James claims the discharge of the gun was accidental. There were many things in the evidence appearing otherwise, and the jury evidently concluded that the shot was discharged either purposely or with great wantonness.

Hayes was detained from his business about six weeks. He suffered much pain and claimed that he was permanently injured. He brought this action in the Shawnee county district court to recover for these injuries, alleging his damages to be $ 20,000. The jury assessed them at $ 2000, and itemized the same as follows: Time lost, $ 81; pain suffered, $ 500 permanent injuries, $ 1000; punitive damages, $ 419.

The court entered judgment upon the verdict and James brings the case to this court alleging many errors.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PERSONAL INJURIES--Accident Distinguished--Instruction Approved. The boundary between two adjacent lots was in dispute. The owner of one of the lots was severely injured by receiving in his body a charge of shot from a gun in the hands of the other, and brought an action to recover his damages therefor. The defendant claimed that the gun was accidentally discharged. In such action it is not error to give the following instruction, the facts as therein predicated being fairly shown by the evidence: "A party is not generally liable in damages for an injury which is the result of an accident, and if you believe from the evidence in this case that plaintiff was injured, but that the injury received was the result of an accident, then plaintiff cannot recover. But if you find that at the time of the injury received by plaintiff the line between plaintiff's and defendant's properties was in dispute, plaintiff claiming said line to be further south than where defendant claimed it to be; that plaintiff went upon said disputed tract of land to determine where a certain post had heretofore been located, and while there in the act of digging upon said strip of land defendant procured a loaded shot gun, pointed it toward plaintiff and discharged it, and plaintiff was injured by reason of the discharging of the gun by defendant, then I instruct you that defendant is liable in damages to plaintiff for any injury he received on account of the discharging of the gun, and it makes no difference whether the defendant intended to hit the plaintiff or not."

2. PERSONAL INJURIES--Measure of Damages. It is impossible to fix any rule by which damages compensating for pain and suffering can be estimated, or for ascertaining what will exactly repay for permanent injury. The amount to be awarded must be left to the enlightened consideration of the jury, under all the evidence, and a verdict therefor will not be set aside unless the court can say that the amount thereof is so excessive as to indicate passion or prejudice on the part of the jury.

Vance & Campbell, for plaintiff in error.

J. S. Ensminger, for defendant in error.

CUNNINGHAM, J. JOHNSTON, GREENE, ELLIS, JJ., concurring.

OPINION

CUNNINGHAM, J.:

Before considering the errors claimed by the plaintiff in error, we may and ought to say that the record, even Mr. James's own evidence, does not show the slightest excuse for the deadly and almost fatal assault which he made on Mr. Hayes. It was entirely without legal excuse. Nothing in the acts of Mr. Hayes or the controversy between them can be found to justify the shooting. However, he is entitled to a fair trial under the rules of law, which his counsel claim he has not had.

The first error claimed is in the admission of the testimony of Doctor Mitchell, who...