Vacanti v. Master Electronics Corp.

• Decision Date: 08 April 1994
• Docket Number: No. S-92-650,S-92-650
• Citation: 514 N.W.2d 319,245 Neb. 586
• Parties: Milo P. VACANTI, Appellant, v. MASTER ELECTRONICS CORPORATION, a Nebraska Corporation, Appellee.
• Court: Nebraska Supreme Court

Page 319

514 N.W.2d 319

245 Neb. 586

Milo P. VACANTI, Appellant, v. MASTER ELECTRONICS CORPORATION, a Nebraska Corporation, Appellee.

No. S-92-650.

Supreme Court of Nebraska.

April 8, 1994.

Syllabus by the Court

1. Property. Under a defense-of-property defense, the use of force is privileged when an invader takes property from another's possession and it appears that the invader is about to remove the property from the possessor's premises. The privilege allows only for the use of reasonable force. The privilege may be exercised by anyone in possession of property who has, as against the invader, a superior right to the property.

2. Jury Instructions: Proof: Appeal and Error. In an appeal based on the claim of an erroneous instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.

3. Actions: Assault: Battery: Damages. In an action for assault and battery, provocation cannot be considered in mitigation of damages.

4. Rules of Evidence. In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the Nebraska Evidence Rules when judicial discretion is a factor involved in admissibility of evidence.

5. Rules of Evidence: Medical Assistance: Health Care Providers. Neb.Evid.R. 803(3), Neb.Rev.Stat. § 27-803(3) (Reissue 1989), applies to persons seeking medical assistance from persons who are expected to provide some form of health care.

6. Expert Witnesses: Physicians and Surgeons: Records. An expert medical witness may base an opinion on the medical records of another treating doctor when the records are of a type reasonably relied upon by experts in the particular field.

7. Expert Witnesses: Records: Hearsay. The mere fact that an expert witness relied on medical records does not transform those records from inadmissible hearsay into admissible evidence.

8. Verdicts: Appeal and Error. An appellate court will not reverse a jury verdict as inadequate unless it is so clearly against the weight and reasonableness of the evidence and so disproportionate to the injury proved as to demonstrate that it was the result of passion, prejudice, mistake, or some other means not apparent in the record, or that the jury disregarded the evidence or rules of law.

Frank Meares, Omaha, for appellant.

Dean F. Suing, of Katskee, Henatsch & Suing, Omaha, for appellee.

HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, and FAHRNBRUCH, JJ., and GRANT, J., Retired.

WHITE, Justice.

Milo P. Vacanti brought a civil assault and battery action against Master Electronics Corporation based on the conduct of Master's employees. The jury returned its verdict in favor of Vacanti, but awarded him less than his claimed damages. Vacanti appealed to the Nebraska Court of Appeals. Under the authority granted by Neb.Rev.Stat. § 24-1106(3) (Cum.Supp.1992) to regulate the caseload of this court and the Court of Appeals, we removed the matter to this court. We affirm.

The basic facts underlying this action are not in dispute. In April 1989, Vacanti's wife delivered a compact disc (CD) player to Master's place of business for repair. Seven months later, on November 21, 1989, Vacanti went to Master's place of business to pick up the CD player. Vacanti believed that the repairs would be covered by warranty. Vacanti was told by a Master employee, Arthur William Hull, that the CD player had been repaired but that Vacanti would be responsible for the bill. Vacanti grabbed the CD player and attempted to leave Master's place of business. Hull and at least one other Master employee, Robert A. Dolezal, attempted to stop Vacanti and succeeded in taking the CD player from him.

Vacanti then brought the present action, claiming that as a result of being "attacked" by Master employees, Vacanti had suffered a "torn" hand, a "muscle separation on a rib," torn ligaments, and injury to his "neck musculature and lip." At trial Vacanti presented evidence of medical bills totaling $3,150. The jury returned a verdict in favor of Vacanti for $1,795.07. Vacanti timely filed a motion for new trial, which was overruled. Vacanti then perfected this appeal.

Vacanti asserts that (1) the trial court erred in giving certain jury instructions, (2) the trial court erred in refusing to admit a medical report into evidence, and (3) the verdict is the result of mistake and is inadequate. We address each of these assigned errors in turn.

Vacanti first asserts that the trial court erred in giving jury instructions Nos. 2, 6, and 9.

Jury instruction No. 2 explains the allegations of the parties. It states, in relevant part:

Defendant generally denies Plaintiff's claim, and asserts that: Plaintiff made inquiry of Defendant concerning repairs to a CD player; that Plaintiff became abusive and attempted to take his CD player without paying for the repairs; that Defendant's employees tried to stop Plaintiff from removing the CD player without paying for these repairs; and that Plaintiff aggravated or provoked this incident.

Jury instruction No. 6 explains the elements of Plaintiff's prima facie case:

Before the Plaintiff can recover from the Defendant, the burden is upon the Plaintiff to establish by a preponderance of the evidence each of the following propositions:

1. That on or about the date alleged in the Petition an individual or individuals unlawfully and without just cause assaulted the Plaintiff, causing him personal injuries;

2. The nature and extent of such injuries;

3. The amount of Plaintiff's damages; and

4. That at the time of these events the individual or individuals were acting as Defendant's agents, within the scope and course of their employment by the Defendant....

Jury instruction No. 9 explains that Master had an artisan's lien on the CD player and therefore had a right to retain the CD player:

Nebraska Statutes provide that when any person, firm or corporation who repairs or in anyway [sic] enhances the value of any equipment such as the CD unit involved in this case, at the request of or with the consent of the owner, or owners thereof shall have a lien on such equipment while in his possession, for his reasonable or agreed charges for the work done or material furnished, and shall have the right to retain such property until such charges are paid.

You are instructed that on November 21, 1989, the Defendant Master Electronics Corporation had a lien on the subject CD unit to the extent of its reasonable or agreed charges for the work done and was entitled to retain possession of the CD unit until such charges were paid.

At the instruction conference, Vacanti objected to each of these three instructions.

The questioned jury instructions all relate to Master's theory of the case: defense of property. Under a defense-of-property defense, the use of force is privileged when an invader takes property from another's possession and it appears that the invader is about to remove the property from the possessor's premises. See Wright v. Haffke, 188 Neb. 270, 196 N.W.2d 176 (1972). The privilege allows only for the use of reasonable force. Id. The privilege may be exercised by anyone in possession of property who has, as against the invader, a superior right to the property. W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 21 (5th ed. 1984).

Vacanti argues that Master was not entitled to a defense-of-property instruction. Vacanti also argues that even if Master had been entitled to such an instruction, the instruction given by the trial court did not properly explain defense of property to the jury. Vacanti concludes that the instructions constitute reversible error. We disagree.

In an appeal based on the claim of an erroneous instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant. Pugh v. Great Plains Ins. Co., 239 Neb. 171, 474 N.W.2d 677 (1991); State v. Harney, 237 Neb. 512, 466 N.W.2d 540 (1991); Rose v. City of Lincoln, 234 Neb. 67, 449 N.W.2d 522 (1989).

Assuming, arguendo, that the instructions were erroneous with respect to defense of property, Vacanti has suffered no prejudice. Vacanti received a judgment in his favor; Master was found liable. The judgment necessarily implies that the jury rejected Master's claimed defense of property.

Vacanti argues that he was prejudiced because the instructions misled the jury into believing that the jury should mitigate damages if the assault and battery were provoked. We disagree.

Vacanti correctly states that in an action for assault and battery, provocation cannot be considered in mitigation of damages. Haumont v. Alexander, 190 Neb. 637, 211 N.W.2d 119 (1973); Horky v. Schroll, 148 Neb. 96, 26 N.W.2d 396 (1947). The damage instruction in the present case informed the jury that if they found for Vacanti on the question of liability, then it would be the jury's duty to award damages for Vacanti's injuries, his pain and suffering, and the reasonable value of his medical care reasonably needed to date. The damage instruction does not mention either provocation or defense of property, and does not suggest that the jury would be entitled to mitigate damages based on Vacanti's behavior.

Two other instructions, not discussed by Vacanti, demonstrate that the trial court properly explained the role of provocation. First, the trial court instructed the jury that "words or acts that do not amount to an assault, even when spoken or performed for the purpose of provoking an assault[,] are not a defense to a civil action on the ground of assault." Second, the trial court instructed the jury that the allegations of the parties, including Master's claim that Vacanti provoked the incident, were not to be considered evidence in the case. We find that the...