Stewart v. Oberholtzer, 5638

• Decision Date: 11 June 1953
• Docket Number: No. 5638,5638
• Citation: 258 P.2d 369,1953 NMSC 42,57 N.M. 253
• Parties: STEWART v. OBERHOLTZER.
• Court: New Mexico Supreme Court

Page 369

258 P.2d 369

57 N.M. 253

STEWART v. OBERHOLTZER.

No. 5638.

Supreme Court of New Mexico.

June 11, 1953.

W. C. Whatley, W. B. Darden and LaFel E. Oman, Las Cruces, George L. Zimmerman, Carrizozo, for appellant.

Garland, Sanders & Cooney, Las Cruces, for appellee.

COMPTON, Justice.

This action grew out of the alleged wilful and malicious shooting of three horses by appellant, the property of appellee. By answer, appellant denied the shooting. The cause was tried to a jury which found the issues generally for appellee. Judgment was entered on the verdict and the appellant appeals.

At the time of the incident involved, appellee was residing in Ruidoso, and operating a riding stable. In connection therewith he was using some thirty-five to forty head of horses, some of which were valuable show horses. He held a lease on forty acres of unfenced land, about one and three-fourths miles from appellant's home, on which he permitted his horses to run at large at night. Appellant maintained a home on a small unfenced tract in the village of Ruidoso in the County Club Heights Subdivision, which was planted to a lawn, flowers, and shrubs. He had expended a large sum of money, some $40,000, in constructing his residence and decorating his premises. On the evening of August 25, 1951, at about 10:30 p. m., appellee's horses wandered onto appellant's premises. A floodlight was on and when appellant observed the animals in his yard, without making an effort to drive them away, he shot them with a rifle at close range, a distance of approximately twenty-five feet. A dun horse was shot in the left hip about the stifle joint; a palomino was shot in the withers; and a sorrel horse was shot in the rump. As a result of the injuries sustained, their values were greatly reduced, if not totally destroyed.

It is claimed that the court erred in refusing to submit appellant's theory of the case to the jury. As previously stated, he had entered a general denial but at the hearing, admitted shooting the horses and requested the court to instruct the jury that he was entitled to exercise such force as was reasonably necessary to expel the livestock from his premises so as to protect his property. In this jurisdiction, it is prejudicial error to refuse to instruct specifically on a litigant's theory of the case, providing such theory is pleaded and there being evidence to support it. Salazar v. Garde, 35 N.M. 353, 298 P. 661; Clay v. Texas-Arizona Motor Freight, Inc., 49 N.M. 157, 159 P.2d 317. But there was no basis for the requested instruction. There was neither pleading nor proof to support such theory. Appellant did not counterclaim for trespass nor offer evidence that any injury had been done him or his property or that the same was in anyway threatened, or that an effort was made to drive the animals from the premises. Moreover, his claim of right to the use of reasonable force for the protection of his property, is inconsistent with his denial of the shooting.

Error is further charged that the court unduly commented upon the weight of the evidence, and in effect, directed the jury to return a verdict for appellee. We do not so appraise the court's action. It is conceded that appellant's premises are not within a so-called herd law district. The objectionable instructions read:

'3. There...