Miller v. Olander
| Decision Date | 07 January 1938 |
| Docket Number | 30155 |
| Citation | 277 N.W. 72,133 Neb. 762 |
| Parties | FRED M. MILLER, APPELLEE, v. AXEL E. OLANDER, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: JAMES M FITZGERALD, JUDGE. Reversed.
REVERSED AND REMANDED.
Syllabus by the Court.
1. Assault and battery consists in an injury actually done to the person of another in an angry, resentful, or insolent manner.
2. One attacked in his dwelling place may await his assailant and use force to repel him, although he could have prevented the attack by closing the door, and thus excluding the assailant from the premises.
3. New evidence which is not merely cumulative, but which consists of new and positive facts which, if believed by the jury might cause them to arrive at a different verdict, will warrant a new trial.
Appeal from District Court, Douglas County; Fitzgerald, Judge.
Action by Fred M. Miller, an infant, by Fred H. Miller, his next friend, against Axel E. Olander. From a judgment in favor of the plaintiff, the defendant appeals.
Judgment reversed, and cause remanded for new trial.
Mossman, Anderson & Meissner, for appellant.
Frost, Hammes & Nimtz, contra.
This is an action to recover damages for an assault and battery. A judgment was entered for $ 1,500, being the amount of the verdict of the jury. A motion for a new trial was overruled, and the defendant appealed.
The assault took place on February 14, 1936. The plaintiff was a young man 16 years of age at that time, and the defendant was 74 years of age. The plaintiff was living with his parents and sister in an apartment house owned by the defendant, at 1307 South Twenty-fifth avenue, Omaha, and next door to the house in which the defendant lived. There were six apartments in the apartment house.
On the day of the assault the young man was at home taking care of his mother, who was sick in bed with double pneumonia. In attempting to get some water in which to give her medicine, he discovered that the water was shut off. He went over to his landlord and asked if the water had been shut off, and the landlord denied that the water had been shut off. The young man went back home, secured water from an adjoining apartment, and an hour or so later the furnace in their apartment began cracking and snapping, and, thinking there was some danger if the water was shut off, because it was a very cold day and the furnace was hot, he went across to the home of the defendant between 4 and 5 o'clock in the afternoon. He knocked at the door and the defendant came to the door, and he asked him if he could go down in the basement to see if the water was shut off. Plaintiff testifies that the defendant thereupon called him a deadbeat and crook, pushed him and hit him on the head with a flashlight, and when he fell on the steps he kicked him in the back a couple of times, and defendant slammed the door and went back in the house. The brother-in-law of the plaintiff testified that he quit work at 3:30 that afternoon, and was going by the house to see how the mother was getting along just as the defendant hit the plaintiff with a flashlight and knocked him down, and saw him kick him a couple of times while he was on the ground. He described the flashlight as the regular five-cell flashlight, with a large head on it, and that he hit him with the large end; that he assisted him home into the house and stayed around there for an hour and a half; that the boy was sick and vomited, and had a big lump on the right side of his head about the size of an egg.
The plaintiff testifies that he did not work again for months. Dr. William J. Nolan testified that the plaintiff came to his office on February 20; that there was a bruised and discolored area, about 1 1/2 by 2 inches, over the right frontal and parietal region of his head; that his neck muscles were stiff, spastic, and painful; that there was rigidity and pain in the back muscles in the lumbar region, and the patient was unable to bend or turn his spine in any direction; that there were also symptoms that led him to diagnose concussion of the brain, as there was dizziness and tottering when the patient stood up with his eyes closed; that he was unable to maintain his balance, was sick at his stomach, and the light hurt his eyes; that he put him under the infra-red ray lamp on his back and on his neck, and had ice-packs put on his head when he went home; that he strapped up his back with adhesive plaster criss-crossed, including the hips and small of the back; that he saw him daily for some time, and gave him treatments with infra-red lamp, and after a while saw him every second or third day, and that he was under his care during the whole year following the assault.
The defendant tells a different story of the assault. His answer to question 531 is: He testifies that he ordered him to get out of there, and pushed him out of the east door, and admits that he kicked him "one in the behind." Defendant said that the flashlight he had was a copper flashlight, about eight inches long, and that the head of the flashlight is a little larger.
The defendant sets out 11 assignments of error:...
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