Knell v. Christman
| Decision Date | 29 May 1953 |
| Docket Number | No. 7346,7346 |
| Citation | 59 N.W.2d 293,79 N.D. 726 |
| Parties | KNELL v. CHRISTMAN. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. On trial de novo on appeal, under NDRC 1943, 28-2732, the appellate court must review and weigh the evidence and find the facts for itself independently of the trial court's findings. Nevertheless, in weighing the evidence and finding the facts, the findings of the trial court will be considered and given appreciable weight, especially when based upon the testimony of witnesses who appeared in person before that court.
2. This is an action for the recovery of damages for assault and battery. The defendant denied liability and interposed a counterclaim. The action was tried to the court without a jury. The court dismissed the counterclaim and rendered judgment in favor of the plaintiff for both compensatory and punitive damages. The evidence is examined and it is held that the findings of fact of the trial court are well sustained by the evidence and that the judgment for compensatory damages should be affirmed but that the judgment should be modified by eliminating the award for punitive damages.
Floyd B. Sperry, Golden Valley, for appellant.
Thorstein Hyland, Stanton, for respondent.
Plaintiff brought this action against the defendant to recover damages for assault and battery. He demanded $2000 for compensatory damages and $2000 for punitive damages. The defendant interposed an answer and counterclaim. He denied the allegations of the complaint except as admitted, qualified and explained. He alleged that on or about August 4, 1950, he took up certain horses owned by the plaintiff and then in the defendant's grain fields and causing damage thereto, that defendant was holding said horses in a pasture owned by him and that on August 5, 1950, the plaintiff wrongfully tore down defendant's fences and removed said animals from defendant's possession and that while in the act thereof the defendant approached the said plaintiff 'whereupon the said plaintiff undertook to take the defendant down on the ground for the purpose of inflicting bodily injury upon him, the said plaintiff having rushed at the defendant, and having caused the latter to fall to the ground, whereupon the plaintiff held the defendant to the ground, in the course of which, and while the defendant was attempting to free himself, said parties engaged in a fight, during the course of which the plaintiff scratched and bruised the defendant, and that the said defendant only used sufficient force to defend himself against said action of the plaintiff.'
The same facts are also alleged in the counterclaim. In such counterclaim it is also alleged 'that immediately after the said plaintiff had destroyed said fences and removed said animals, the defendant approached the scene where the plaintiff had taken down the defendant's fences, for said purpose, whereupon the plaintiff attacked the defendant, by rushing upon him and by taking the defendant down on the ground; that thereafter, the plaintiff proceeded to scratch and bruise the defendant, said defencant thereafter having fought back in his self defense, for the purpose of freeing himself from the plaintiff's hold upon him, and that in the course of said affray, the said plaintiff scratched the defendant upon the face, the plaintiff having also struck and bruised the defendant upon his body, causing him severe pain, and that after the defendant succeeded in getting away from the plaintiff, the said plaintiff then wrongfully and maliciously caused the defendant to be arrested in an assault and battery proceeding, without any justification, and for the purpose of further annoying, harassing and injuring the defendant; that all of the acts described in this counterclaim arose out of the same affray and took place at the same time, that is described in the plaintiff's complaint, and that as a result thereof, the defendant was caused damages, by the plaintiff, in the sum of $2,500.00.' The defendant prayed that plaintiff's action be dismissed and that defendant have judgment against plaintiff for $2500 for actual damages and for $2500 for punitive and exemplary damages. The plaintiff interposed a reply denying all the allegations of the counterclaim. When the case came on for trial in the district court the parties agreed that a trial to a jury be waived and that the case be tried to the court without a jury.
The case was so tried upon the issues framed by the pleadings. The trial court made findings of fact, conclusions of law and order for judgment in favor of the plaintiff. The court found that 'the defendant Samuel Christman did willfully and maliciously, beat and strike the plaintiff on the head and body and thereby causing the plaintiff great injury and causing him great pain and suffering and that it became necessary by reason thereof for plaintiff to be treated by a physician and surgeon at a hospital, all to plaintiff's damage in the sum of Four Hundred eighteen ($418) Dollars.' The court also found 'that defendant has failed to prove the material allegations in his counterclaim.' From the facts found the court drew the conclusions of law 'that plaintiff is entitled to Four Hundred Eighteen ($418.00) Dollars as actual damages and One Hundred ($100.00) Dollars as exemplary damages, making a total judgment of Five Hundred Eighteen ($518.00) Dollars and for the costs and disbursements in the action; and that defendant's counterclaim be dismissed, with prejudice.' Judgment was entered accordingly and the defendant has appealed to this court from the judgment and demands a review and retrial of the entire case in this court.
The plaintiff and defendant are neighboring farmers in the vicinity of Hazen in Mercer County. A railroad of the Northern Pacific Railway Company running approximately east and west separates their lands. There are fences along each side of the railroad right-of-way. The defendant Christman testified that he lived on a farm about, but not quite, a mile from Hazen; that the plaintiff lived about a quarter of a mile from him; that both of them lived at such places in August, 1950; that about 1:30 in the afternoon of August 4, 1950, he found two of plaintiff's horses in his (defendant's) wheat field. When asked what he did with the horses he said, 'I drove them out and drove them into my pasture' and turned them loose in my pasture. They stayed in the pasture until the following morning and were taken out about 4:30 that morning. That the plaintiff Ed Knell lived 'about, not quite, a quarter of a mile from my place.' He testified:
He testified that at one time he had paid Knell for damages caused by some of his (defendant's) cattle 'that got into his (Knell's) crop,' that he settled this by talking with Knell and there was no lawsuit or anything of that kind. It was settled by talking. The testimony does not show at what time or what year this former incident occurred. He testified that he discovered that the horses were missing from the pasture 'about a quarter to five on the 5th of August.' That when he got up that morning about 4:30 he could not see the horses but heard the plaintiff calling them, that he walked over to the place where Knell had taken them out, that Mr. Knell was chasing them home along the right-of-way. Defendant testified:
'Q. Did you speak to him first that morning or did he speak to you first? A. I spoke to him first.
'Q. What did you say to him and what did he say to you? A. Just said, And he said 'I am not stealing them out,' and he came towards me. He threw me on the ground. * * *
'Q. Well, then, just how did he throw you on the ground; that is, how did he grab you? A. Well, when he came rushing toward me, (I) put my hand up like that to protect my face and he grabbed me around the waist and pushed me down across the track, across the rails.
'Q. Then you were over the rails and your back was in between the two rails, was that where it was? A. Yes.
'Q. And he was on top of you? A. Yes. He come rushing up along the track from the southwest. * * *
'Q. And then you say that he rushed you and through the force with which he struck you, you went down on your back on the railroad track? A. Yes. * * *
'Q. Where did he have both of his arms when you first went down? As you were going down? A. Around my waist. * * *
'Q. And how did you get out from under him? A. Well, we just scuffled around and I did have my right hand free, which I poked him in the ribs then and I managed to hold him off the side then.
'Q. Then you rolled him over south of the south rail of the track, is that the way it was? A. That's right, yes. * * *
'Q. And was anything said by Mr. Knell to the boy about helping? A. Well, Mr. Knell never said anything, but Mrs.
'Q. What did she say? A. She said to Ervin,
* * *
...
To continue reading
Request your trial
- State ex rel. City of Minot v. Gronna
-
Pauly v. Haas
...217. State ex rel. Halvorson v. Simpson, 78 N.D. 440, 49 N.W.2d 790. Ellison v. Ellison, 79 N.D. 46, 54 N.W.2d 656. Knell v. Christman, 79 N.D. 726, 59 N.W.2d 293. Ginter v. Ginter, N.D., 63 N.W.2d 394. Hoffer v. Crawford, N.D., 65 N.W.2d 625. Dockter v. Crawford, N.D., 65 N.W.2d 691. Shong......
-
Sittner v. Mistelski, 8252
...given appreciable weight, especially when based upon testimony of witnesses who appeared before the court in person. Knell v. Christman, 79 N.D. 726, 59 N.W.2d 293; Schott v. Enander, 73 N.D. 352, 15 N.W.2d 303; Kolb v. Kolb, 75 N.D. 181, 26 N.W.2d 484; Higgins v. Duprat (N.D.), 120 N.W.2d ......
-
Mertz v. Weibe
...of witnesses who appeared in person before the trial court. Umland v. Frendberg, 63 N.W.2d 295 (N.D.1954), citing Knell v. Christman, 79 N.D. 726, 59 N.W.2d 293 (1953), and cases cited therein. See also Hillius v. Wagner, 152 N.W.2d 468 (N.D.1967), and cases cited It therefore becomes incum......