Stockwell v. Brinton

• Decision Date: 31 May 1913
• Court: North Dakota Supreme Court

142 N.W. 242

26 N.D. 1

LEONARD STOCKWELL v. J. W. BRINTON

Supreme Court of North Dakota

May 31, 1913

Rehearing denied July 5, 1913.

From an order of the District Court for Billings County, Nuchols Special Judge, presiding, denying new trial, plaintiff appeals.

Affirmed.

M. A Hildreth, for appellant.

The court's charge upon the question of damages is clearly erroneous. Punitive damages may be recovered without the showing of actual malice. Penal Code 1905, § 9524; Rev Codes 1905, § 6562; Shoemaker v. Sonju, 15 N.D. 518, 108 N.W. 43, 11 Ann. Cas. 1173; Fotheringham v. Adams Exp. Co. 1 L.R.A. 474, 36 F. 252; White v. Spangler, 69 Iowa 222, 26 N.W. 85.

Malice may be inferred from an act or acts of the defendant, and the weapon used by defendant at the time of the assault, and his general conduct, as well as previous threats, are all proper matters of proof. Fotheringham v. Adams Exp. Co. supra; Selland v. Nelson, 22 N.D. 14, 132 N.W. 220.

There was a conspiracy between Haigh and defendant to injure plaintiff, and evidence of such fact was admissible. State v. Anderson, 92 N.C. 737; State v. Stark, 63 Kan. 529, 54 L.R.A. 912, 66 P. 243; 1 Wharton, Crim. Law, 702; 3 Greenl. Ev. 95; Taylor, Ev. 527; Place v. Minster, 65 N.Y. 89; People v. Sharp, 45 Hun, 460; State v. Winner, 17 Kan. 298; Cox v. State, 8 Tex.App. 302, 34 Am. Rep. 746; Avery v. State, 10 Tex.App. 210; Heard v. State, 9 Tex.App. 1.

Statements made by a party to a common scheme of conspiracy to do a wrong are admissible. State v. Gilmore, 151 Iowa 618, 35 L.R.A.(N.S.) 1084, 132 N.W. 56; Joyce v. State, 88 Neb. 599, 130 N.W. 291; Clinton v. Estes, 20 Ark. 216; Miller v. Dayton, 57 Iowa 423, 10 N.W. 817.

It is always competent to show that parties have fabricated or suppressed evidence. Cover v. Com. 5 Sadler (Pa.) 79, 8 A. 196; Underhill, Crim. Ev. § 121, and notes; Moore, Facts, § 585, and cases cited. Miller v. Dayton, 57 Iowa 423, 10 N.W. 817; Barber v. State, Tex. Civ. App. , 69 S.W. 515; 3 Enc. Ev. 432, 433; Musser v. State, 157 Ind. 423, 61 N.E. 1; Fitzpatrick v. United States, 178 U.S. 304, 44 L.Ed. 1078, 20 S.Ct. 944; People v. Cleveland, 107 Mich. 367, 65 N.W. 216; Pierson v. State, 18 Tex.App. 524; Allen v. State, 12 Lea, 424; Abbott, Trial Brief, Crim. Cas. 274, 275.

Where defendant in an assault case attempts to justify his acts, he must do so by a preponderance of the evidence. As to this, the burden of proof is upon defendant. Sellman v. Wheeler, 95 Md. 751, 54 A. 515; Gizler v. Witzel, 82 Ill. 326; Johnson v. Strong, 22 Ky. L. Rep. 577, 58 S.W. 430; Phillips v. Mann, 19 Ky. L. Rep. 1705, 44 S.W. 379; Rhinehart v. Whitehead, 64 Wis. 42, 24 N.W. 401.

Haigh was an abetter and encouraged the affray, and was jointly liable. People v. Yslas, 27 Cal. 630; Cooley, Torts, 186; Hilmes v. Stroebel, 59 Wis. 74, 17 N.W. 539; Bishop, Non-Contract Law, § 535; Brown v. Perkins, 1 Allen, 89; Little v. Tingle, 26 Ind. 168; State v. Speyer, 182 Mo. 77, 81 N.W. 433; Darling v. Homer, 16 Mass. 289; Sexton v. Rhames, 13 Wis. 99; Eastman v. Porter, 14 Wis. 49; Druecker v. Salomon, 21 Wis. 632, 94 Am. Dec. 571; United States v. Kane, 23 F. 748; State v. Jones, 83 N.C. 605, 35 Am. Rep. 586; Lamb v. People, 96 Ill. 73.

L. A. Simpson, for respondent.

The questions in this case were for the jury, and the order of the trial court overruling plaintiff's motion for a new trial should not be disturbed. Nilson v. Horton, 19 N.D. 187, 123 N.W. 397, and cases cited.

Where the evidence is conflicting,--the jury being sole judges of its weight, and of the credibility of the witnesses,--the verdict should not be disturbed. Bailey v. Walton, 24 S.D. 119, 123 N.W. 701.

Where different conclusions may be drawn from the evidence, the finding of the jury is conclusive. Berry v. Chicago, M. & St. P. R. Co. 24 S.D. 611, 124 N.W. 859; Coughran v. Western Elevator Co. 22 S.D. 214, 116 N.W. 1122.

Where the verdict is supported by substantial evidence, and the trial court having refused to disturb it, such ruling will be sustained. Acton v. Fargo & M. Street R. Co. 20 N.D. 434, 129 N.W. 225.

The matter of limiting counsel in their argument to the jury is wholly discretionary with the trial court. Sylvester v. Jerome, 19 Colo. 128, 34 P. 760; 2 Enc. Pl. & Pr. 702 and cases cited; Selland v. Nelson, 22 N.D. 14, 132 N.W. 220; Kerley v. Gernscheid, 20 S.D. 363, 106 N.W. 136.

OPINION

GOSS, J.

The complaint alleges that the defendant, Brinton, on August 22, 1909, in Beach, North Dakota, "did make a violent assault upon plaintiff and did with a billy or bludgeon wilfully and unlawfully strike, beat, and wound the plaintiff over and about the left arm and left side of the head, then and there inflicting upon the plaintiff great injuries to his head and arm, to the damage of the plaintiff in the sum of $ 5,000." Defendant by answer denies the assault and injuries, but alleges that the plaintiff wilfully and maliciously assaulted him, defendant; and that if plaintiff received any injuries from defendant the same were inflicted while plaintiff was unlawfully assaulting defendant, and that any injuries suffered were inflicted by defendant in the necessary defense of his person from the unlawful assault made upon him by plaintiff. The jury found for defendant by a general verdict. Plaintiff appeals from an order denying a new trial, assigning error in the admission and exclusion of testimony and instructions given and refused.

It appears that upon the day in question, and prior to the altercation made the basis of this suit for damages, Stockwell and Brinton met in the early afternoon, when a difficulty arose and the parties grappled, Brinton being thrown to the ground with Stockwell upon him. They were separated. Some hours thereafter, and about 6 o'clock the same day, a second encounter ensued. Concerning who was then the aggressor the testimony is in dispute, each claiming the other to have been. Between the two affrays defendant had armed himself with a billy, and at the second melee used it to considerable effect upon the head and arm of the plaintiff. When they were then separated, the billy was taken into possession by its owner, Haigh. Defendant testifies to taking the club to his office some time before the day in question, but after the publication by him in his newspaper of matter concerning plaintiff, which answered an article previously caused to be published by Stockwell. It appears that Haigh and Brinton had talked over these published articles and the possibility of trouble between Brinton and Stockwell when they met, and defendant, in order to be prepared for emergencies that might arise, had procured the club from Haigh's office and taken it to his newspaper office, in readiness for anticipated trouble, and from which place he got it between the altercations that took place upon the day in question. Both affrays occurred in the afternoon of August 22, 1909, and upon the streets of Beach, in the presence of many bystanders, a dozen or more of whom have testified in this action.

Error is grouped under many assignments, discussed as follows in the order taken: Defendant was called for cross-examination under the statute as the first witness, and among other things had testified in substance that he had gone over to Haigh's office and "helped myself to the club." Whereupon the question was asked: "You never told him where it was?" to which the court sustained an objection. Haigh subsequently testified that "I told Brinton the club was there (in my office), because I believed that Stockwell was going to pitch onto him. Guess I told him the billy was on the side of the wall (of my office); and again: "When I talked with him about looking out for Stockwell, about this article, I said something about the billy. I had warned him on account of this former talk with Stockwell. He could do as he saw fit about arming himself with it." Defendant admits he took it pursuant to such permission, in anticipation of the trouble subsequently had; so any error in the ruling, conceding the same to have been error, was subsequently cured. Both parties were fully examined, touching all phases of this matter inquired about. On this assignment counsel for appellant states: "We started in the beginning to find out what had become of this weapon." The alleged error had nothing to do with the question of what became of the bludgeon, and could not have been so understood.

Counsel's second assignment is based upon the exclusion of the following, asked of Webber: "Could you tell from that point of vantage in which direction these blows were falling as to what portion of the body of Stockwell, as to whether they were aimed at his head or his neck or his arm?" The witness had previously testified on the subject that defendant "walked out to him and hit him on the head with a club, . . . followed him up, striking him, and Stockwell guarding with his left arm, backing away, Brinton following, striking him,--landing on Stockwell mostly on the left arm. There was blood on the side of Stockwell's face; probably half the side of the face was discolored by blood. I did not see his arm closely at that time." Witness was testifying to events occurring from 150 to 180 feet from him, and concerning events described in detail by a dozen witnesses and a circumstance merely of the affray. Any error must be nonprejudicial under such circumstances. In the cross-examination of this witness he was asked: "Where did Stockwell have his hands at that time he was facing Brinton and saying something to him?" to which the plaintiff objected on the ground that "it assumes that Stockwell was saying something to Brinton, and the witness has testified that he could not tell who was talking." This is assigned as error. ...