Morfeld v. Weidner
| Decision Date | 13 November 1915 |
| Docket Number | 18309 |
| Citation | 154 N.W. 860,99 Neb. 49 |
| Parties | BERNARD MORFELD, APPELLEE, v. A. M. WEIDNER, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Platte county: GEORGE H. THOMAS JUDGE. Affirmed.
AFFIRMED.
William V. Allen and William L. Downing, for appellant.
A. M Post and C. N. McElfresh, contra.
From a judgment of the district court for Platte county, awarding plaintiff damages in the sum of $ 3,000, for assault, defendant appeals.
The evidence shows that plaintiff had been working for defendant as a farm hand. Early in the morning of the day of the assault, plaintiff notified defendant that he was going to "quit." After breakfast plaintiff attended church, and later in the forenoon he and two companions drove in a buggy to defendant's farm. The purpose of the visit was to obtain settlement of plaintiff's account for wages. On arrival they found defendant in the field cultivating corn. A disagreement arose over the sum of $ 2. Plaintiff insisted that he must have the $ 2, and defendant told him he would not get it. Thereupon plaintiff called defendant a vile name. After being told not to do so, plaintiff repeated the offense, whereupon defendant rushed at him and administered a severe kick in his private parts. While it is not certain that defendant intended to kick him in that part of his person, it is fairly deducible from the evidence that at least the heel of his shoe, as he kicked upward, reached such part. Plaintiff then seized a whip and defendant a wrench. Each assumed a threatening attitude, but actual hostilities proceeded no further. After each had dropped his weapon, defendant drew a check for the amount due, less the $ 2 in dispute, and gave it to plaintiff. Plaintiff then got into the buggy with his two companions and they drove away. The above is the substance of the testimony of the plaintiff and defendant and the two other young men present, as the jury must have found the facts to be. At the time he received the kick, plaintiff made no outcry and did not say that he had been kicked in the parts above indicated. On the trial, the young man who was driving the buggy was permitted to testify in behalf of plaintiff that on leaving the farm, and right after the altercation took place, plaintiff said that defendant had "kicked him here," indicating the parts above mentioned.
By defendant's second assignment of error it is urged that this was an attempt to introduce a self-serving declaration which was no part of the res gestae. We do not deem it necessary to decide whether or not the statement was so intimately connected with the assault as to make it a part of the res gestae, for the reason that, even if it were too remote, it could not have prejudiced the defendant. Defendant's own testimony is that he kicked at him. The young man standing nearby testified that he saw him administer the kick, but wavered somewhat as to where the blow landed, stating at one time that the foot struck plaintiff in the breast too high up for even the heel to reach the parts indicated, and in another place admitting that the blow might have been low enough for the heel to have done so. Plaintiff testified that the kick was upon the part of his person indicated. This testimony, supported as it is by the uncontradicted evidence as to plaintiff's condition for weeks and months thereafter, is of such a character that, if the testimony of the driver of the buggy had not been admitted, the jury could not have found otherwise than that the plaintiff's injury resulted from the kick administered by defendant.
About seven or eight days after plaintiff's injury, his mother arrived at Humphrey, where plaintiff was being treated by Doctor Lemar. She was interrogated at some length as to the condition in which she found plaintiff, and was permitted to state what he said as to his pain and suffering and about the parts which were causing the same. No objection was interposed to that line of questioning, but she also testified to some statements made by her to a man who was taking care of Doctor Lemar's office, to the effect that she intended to take plaintiff away. We have examined this part of Mrs. Morfeld's testimony very carefully, and find nothing in the statements made by her to Doctor Lemar, or by the doctor to her, which could have affected the result.
Defendant's third assignment of error is that the court erred in refusing to give his requested instruction No. 3, as follows "You are instructed that while the court has admitted certain statements and declarations made by the plaintiff to other persons some time after the injury is claimed by the plaintiff to have been received, as to the manner in which his alleged injury was received, you should consider such statements and declarations with caution, and should subject them to a close scrutiny before giving them weight in your deliberations." This instruction could not properly be applied to the testimony of Mrs. Morfeld, or to the statements and declarations made by plaintiff to her. The statements made to her were not as to who had administered the blow, but simply statements as to his then physical condition--statements made at a time when he was either in bed, or confined to the house, or incapacitated for doing any work--and, while the jury might have been told that they would have a right to take into consideration the circumstances under which such statements and allegations were made, we do not think the court would have been justified in telling them that they should consider such statements and declarations "with caution" and should "subject them to a close scrutiny" before "giving them weight" in their deliberations. If the evidence was proper, and we think it was, the court...
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