Lambrecht v. Schreyer, s. 19,045-(49).

• Court: Supreme Court of Minnesota (US)
• Writing for the Court: Hallam
• Citation: 129 Minn. 271
• Decision Date: 07 May 1915
• Docket Number: Nos. 19,045-(49).,s. 19,045-(49).
• Parties: ROBERT LAMBRECHT v. OTTO SCHREYER.<SMALL><SUP>1</SUP></SMALL>

129 Minn. 271 ROBERT LAMBRECHT
v.
OTTO SCHREYER.¹ Nos. 19,045-(49). Supreme Court of Minnesota. May 7, 1915.

Page 272

Action in the district court for Brown county to recover $3,380.30 for injuries received and expenses incurred by the wilful act of defendant. The case was tried before Olsen, J., and a jury which returned a verdict for $750. From an order denying his motion for a new trial, defendant appealed. Affirmed.

Somsen, Dempsey & Mueller and H. L. Schmitt, for appellant.

Pfaender & Flor, for respondent.

HALLAM, J.

Plaintiff and defendant are neighboring farmers. One day in December, 1914, plaintiff overtook defendant on a country road. Plaintiff, with several members of his family, was driving in a light two seated surrey. Defendant was driving in a loaded lumber wagon. The parties had not been on good terms for some time and it is claimed that, as plaintiff passed, something occurred to anger defendant, and that he followed, yelling and lashing his horses, and

Page 273

himself passed plaintiff just as plaintiff had reached the driveway leading in to his house, that as defendant passed he drove very near plaintiff's team, and struck one of the horses with a whip causing the team to become unmanageable so that they ran into a stump, and plaintiff was injured. Plaintiff sued for damages for these injuries and recovered a verdict. Defendant appeals.

The action is for assault.

1. The court charged the jury that if defendant struck one of the horses plaintiff was driving, from malice, wantonness or recklessness, and that by reason thereof plaintiff was injured, this constitutes an assault upon plaintiff. This instruction was proper. Such acts do constitute an assault. Marentille v. Oliver, 2 N. J. Law, (358), *379; Clark v. Downing, 55 Vt. 259, 45 Am. Rep. 612.

2. The court further instructed the jury that if defendant whipped up his horses to great speed and yelled loudly and passed plaintiff and his team and vehicle, and if such acts were done "recklessly" and in such manner and so near to plaintiff as to be likely to produce injury, and such acts caused plaintiff's team to run away and caused injury to plaintiff, then, even though defendant did not in fact strike plaintiff's horse, his act would amount in law to an assault. We think this construction also correct and that such acts constitute in law an assault. State v. Sims, 3 Strob. (S. C.) 137; People v. Lee, 1 Wheel. Crim. Cas. (N. Y.) 364.

3. It is claimed that plaintiff was negligent in the management of his team, and that the court should have submitted the question of contributory negligence to the jury, and should have instructed them that contributory negligence on his part would bar a recovery. We do not agree with this contention. Contributory negligence is a defense only in cases where the action is founded on the negligence of the defendant. It is not a defense to an action for assault. Whitehead v. Mathaway, 85 Ind. 85; Ruter v. Foy, 46 Iowa, 132; Kain v. Larkin, 56 Hun, 79, 9 N. Y. Supp. 890. It is urged that the use of the word "recklessly" in the charge characterizes the act of defendant as negligent only. But the word "recklessly" must not be taken and construed alone. It must be taken in connection with other accompanying words. Taking the whole language together,

Page 274

the act of which the court charged the jury was not in any sense a negligent act.

4. Two of plaintiff's daughters sat in the back seat of the surrey. Each of them testified that defendant struck one of plaintiff's horses with a whip. Each was permitted to testify further in substance as follows: That upon colliding with the stump, plaintiff, her father,...