Tatman v. Cordingly
Decision Date | 23 November 1983 |
Docket Number | No. 83-114,83-114 |
Citation | 672 P.2d 1286 |
Parties | E. Ben TATMAN, Appellant (Plaintiff), v. Gary L. CORDINGLY, Appellee (Defendant). |
Court | Wyoming Supreme Court |
C.M. Aron and Sid L. Moller of Aron & Hennig, Laramie, for appellant.
Paul B. Godfrey of Godfrey & Sundahl, Cheyenne, for appellee.
Before ROONEY, C.J., and THOMAS, ROSE, BROWN and CARDINE, JJ.
E. Ben Tatman, appellant, sued Gary L. Cordingly, appellee, for assault and battery after the two had an altercation. Judgment was entered pursuant to a jury verdict finding that Cordingly acted out of self-defense. Tatman appeals the judgment on the grounds of faulty jury instructions and lack of sufficient evidence to support the verdict.
We affirm.
There was a dispute between Tatman and Cordingly. This dispute precipitated a confrontation on June 1, 1982, in Albany County near the Old Fort Fetterman Road, miles from the nearest town. Tatman was 66 years old at the time of the incident, Cordingly in his early 20's. As a result of the fight that occurred Tatman was hospitalized for eight days and incurred substantial medical expenses. There were no witnesses to the scuffle other than the parties themselves, and they disagree as to the details. Both parties contend that the other was the aggressor.
The issues presented in this case as stated by appellant are:
First we will discuss the second issue dealing with the sufficiency of the evidence. The standard of review we have repeatedly used in determining if the evidence is sufficient to support the verdict is that "[t]he trier of facts is the sole judge of the weight to be given to all testimony, and the matter of determining where the preponderance of the evidence lies is within the sound discretion of the trier of facts." Condict v. Hewitt, Wyo., 369 P.2d 278, 279 (1962). When reviewing cases on appeal, we are compelled to accept the evidence of the prevailing party as true, leaving out of consideration entirely the evidence of the unsuccessful party that conflicts with it, and giving to the evidence of the successful party every favorable inference which may reasonably and fairly be drawn from it. Jelly v. Dabney, Wyo., 581 P.2d 622 (1978).
Although there was much conflicting testimony in this case, we, as a court of review, will not disturb the findings of the trier of fact unless the findings are so totally in conflict with the great weight of evidence that they can be said to be irrational. Agar v. Kysar, Wyo., 628 P.2d 1350 (1981).
In this case, judgment was entered on a jury verdict finding that Tatman committed a battery and Cordingly exercised reasonable self-defense. The jury was certainly entitled to believe Cordingly's testimony and find in his favor. There was evidence that Tatman had a bad temper, that he carried a gun and used it often, that he ran over Cordingly's motorcycle with his pickup truck, that Tatman struck Cordingly first, that Tatman was repeatedly trying to get to his rifle and that Cordingly feared for his life. From our review of the record, we find sufficient evidence for the jury to decide as they did.
The appellant contends that the trial court erred in refusing two of his jury instructions. The first instruction denied reads:
"When it appears that a fight merely erupted between two parties and it is not clear who was the aggressor, then each party is liable for any injury inflicted on the other."
This proposed instruction misstates the law. Each party is liable for the injury inflicted upon the other when there is a mutual affray. Condict v. Hewitt, supra. A mutual affray, however, differs from the situation where it is not clear who is the aggressor. Mutual affray is defined as a fight in which both parties willingly enter and is similar to a duel. Black's Law Dictionary 920 (5th ed. 1979). A mutual affray, therefore, requires mutual consent. There was no evidence that there was mutual consent to fight. In fact, the evidence is to the contrary; both parties claim that they were attacked by the other and reacted in self-defense. Therefore, regardless of whose side of the story is believed, there was no mutual affray.
The second instruction at issue was partially denied by the trial court. The refused portion of plaintiff's proposed Instruction 3 reads:
This instruction is an accurate statement of Wyoming law on self-defense and its limits. The trial judge did, however, properly instruct the jury on these matters. The court gave jury Instructions 7, 8, and 9 which read:
Instructions 8 and 9 adequately cover the issue of self-defense and where the privilege of self-defense ends. It was not necessary for the court to duplicate these instructions by giving plaintiff's proposed Instruction 3 in full. Britton v. State, Wyo., 643 P.2d 935 (1982); and Scheikofsky v. State, Wyo., 636 P.2d 1107 (1981).
Instruction 7, however, does not fully state the law in regard to the apparent necessity for acting in self-defense. According to Prosser:
"The privilege to act in self-defense arises, not only where there is real danger, but also where there is a reasonable belief that it exists. * * *
* * * "Prosser, Torts, § 19, p. 109 (4th ed. 1971).
The Restatement of the Law (Second), Torts (2d), § 63(1), p. 98 (1965), states:
"An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him."
Therefore, the standard to be applied in determining if there is the apparent necessity to act in self-defense is both subjective and objective. Not only must a person believe that a real danger exists, but that belief must also be reasonable. In the court's Instruction 7, a subjective standard is set out but the objective, "reasonable," standard is missing. To claim self-defense, the defendant's belief as to the necessity of defending himself must be based upon reasonable grounds. A subjective fear does not by itself entitle the defendant to use self-defense. Loy v. State, 26 Wyo. 381, 185 P. 796 (1919). We recognize that Loy was a criminal case, but the principle we have just discussed is substantially the...
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