Newcome v. Russell

• Court: Court of Appeals of Kentucky
• Writing for the Court: Carroll
• Citation: 133 Ky. 29
• Parties: Newcome v. Russell
• Decision Date: 24 March 1909

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133 Ky. 29 Newcome
v.
Russell Court of Appeals of Kentucky. March 24, 1909.

Appeal from Marion Circuit Court.

I. H. THURMAN, Circuit Judge.

Judgment for plaintiff, defendant appeals — Affirmed.

H. W. RIVES for appellant.

W. W. SPALDING for appellee.

S. S. RUSSELL of counsel.

OPINION OF THE COURT BY JUDGE CARROLL — Reversing.

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In an action for assault and battery, the appellee recovered a judgment against appellant for $400. The facts are, briefly, these: The parties, who were neighbors, were not on good terms. The ill feeling between them was aggravated by an arrangement made by appellee with a party to pasture some cattle for him. In taking the cattle to pasture, it was necessary that they should be driven through the lands of appellant, who objected to the cattle passing through his premises, and, to prevent them, had fastened his gate on the morning of the day the difficulty out of which the action arose occurred. Appellant's version of the affair is that appellee was attempting to take down or make a gap in appellant's fence for the purpose of letting the cattle through, and, when he objected to the tearing down of the fence, appellee persisted, whereupon he shot him in the leg, which is the assault and battery complained of. Appellee's story is that he was not tearing down the fence to let the cattle through, but, being a cripple, he was obliged to take a few rails off the fence to get over it, and was in the act of getting over the fence and escaping from appellant, who had been threatening and cursing him, when he was shot.

The principal error complained of is in respect to the instructions given and refused. The court instructed the jury: "(1) That if you believe from ____ the evidence that the defendant Newcome on the — day of June, 1907, not in his necessary or apparently necessary self-defense from death or great bodily harm, then and there about to be inflicted upon him at the hands of the plaintiff, Russell, assaulted, shot, and wounded Russell, you should find for plaintiff and award him in damages such sum as you will believe from the evidence will fairly and reasonably compensate him for any loss of time, or for any impairment of his power to labor and earn money in the future, resulting directly from such assaulting, shooting and wounding; and if you shall believe from

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the evidence that said assaulting and wounding was willful, wanton and malicious, you may or not award him punitive damages. (2) Defendant had the right to protect his property, including his fence, from unnecessary interference on the part of plaintiff; and if you shall believe from the evidence that the plaintiff was unnecessarily taking down defendant's fence, and that defendant in shooting and wounding plaintiff used only such force as was reasonably necessary to prevent plaintiff from so taking down his fence, you should find for the defendant." The appellant, defendant below, offered the following instruction, which was refused: "The defendant had the right to protect his property, including his fence, from any interference on the part of plaintiff; and if you shall believe from the evidence that plaintiff was taking down defendant's fence, and that defendant in shooting and wounding plaintiff used only such force as was reasonably necessary to prevent plaintiff from so taking down his fence, you should find for the defendant."

It may be well to notice at the outset that appellant did not, in the instruction offered, attempt to justify the shooting upon the ground that it was necessary in his self-defense, but rested his right solely upon the proposition that he had the right, if it was necessary to prevent appellee from taking down his fence, to shoot him. The force that may be used to prevent a...