Yount v. Strickland

• Decision Date: 29 May 1909
• Citation: 17 Wyo. 526,101 P. 942
• Parties: YOUNT ET AL. v. STRICKLAND
• Court: Wyoming Supreme Court

101 P. 942

17 Wyo. 526

YOUNT ET AL. v. STRICKLAND

Supreme Court of Wyoming

May 29, 1909

ERROR to the District Court, Laramie County; HON. RODERICK N MATSON, Judge.

The action was brought by Charles H. Strickland against Newton D Yount and Frances Yount, to recover damages for an alleged assault and battery. From a judgment in favor of the plaintiff, the defendants prosecuted error. The material facts are stated in the opinion.

Affirmed.

Donzelmann Kinkead & Mentzer, for plaintiffs in error.

The only questions of fact under the pleadings are: First, did the plaintiffs in error commit the assault as alleged. Second, did they inflict upon the defendant in error the injuries alleged to have been sustained by him and in the manner and form as alleged. Third, were such injuries received while committing an unlawful assault upon the plaintiffs in error or either of them. Fourth, were such injuries inflicted upon the plaintiffs in error, or either of them, while they, or either of them, were defending their person against an unlawful assault made by the defendant in error. Fifth, did plaintiffs in error, or either of them, in defending their person, use excessive force without excuse or justification. If the questions stated are all that were involved then no evidence tending to show the land owned by defendant in error in the locality where the alleged assault took place, or tending to show the location of any laterals owned by any one, or any contract with reference to any lateral, or conversation between the parties with reference to the location of any lateral, could have any relevancy, or tendency to prove the issues presented by the pleadings, and it follows, therefore, that the court erred in admitting the large amount of evidence with reference to those matters. Such errors were prejudicial as permitting matters foreign to the issues to be introduced, and the plaintiffs in error could not have been prepared to meet the same. The presumption always is that error is prejudicial. (U. S. v. Gentry, 119 F. 70; Biscuit Co. v. Nowlan, 138 F. 6; Williams v. U.S. 158 F. 30; Deery v. Gray, 5 Wall. 795.) In all civil cases the plaintiff is required to establish his case by a preponderance of the testimony, and unless he has done that to the satisfaction of the court or jury, the verdict should be for the defendant, but this does not mean that a trial court can arbitrarily ignore all evidence and render a judgment contrary to the preponderance. (Watson v. Hastings, 1 Penn. 47; Bell v. McGinnis, 40 O. St. 204; Ellis v. Buzzell, 60 Me. 209; Folson v. Brown, 25 N.H. 114; People v. Evening News, 51 Mich. 11; Jones Ev. Sec. 193; Sampson v. Henry, 11 Pick. 379; Frederic v. Gilbert, 8 Pa. St. 454.) In this case we have the testimony of the defendant in error alone against the testimony of the plaintiffs in error so that clearly the preponderance as to the main facts is with the plaintiffs in error.

A witness may be asked on cross-examination for the purpose of testing his memory concerning other transactions wholly immaterial, except so far as they throw light upon his memory, habits of observance or reliability. (3 Jones Ev. p. 1815.) And a witness may be impeached by proving a statement out of court inconsistent with or contradicting those made by him on the witness stand. (3 Jones Ev. 848.) No provocative acts, conduct, insults, threats or words will justify an assault, no matter how offensive or exasperating, nor will they excuse the wrong doer. (Keiser v. Smith, 71 Ala. 481; Terry v. Eastland, 1 Stew. (Ala.) 156; Matthews v. Terry, 10 Conn. 455; Tatnell v. Courtney, 6 Houst. (Del.) 434; Smith v. Bagwell, 19 Fla. 117; Sax v. Anderson, 12 Ga. 461; 3 Cyc. 1077.) Under the allegations of the petition in connection with the evidence in the case damages in favor of the defendant in error were not warranted in any sum exceeding the amount of his expenses occasioned by his injuries and that which would compensate him for his loss of time, especially as the court found that he was not entitled to punitive damages. In the absence of an allegation claiming damages for mental suffering, the damages in the case should have been limited to those which were purely compensatory. Compensatory damages are those which will compensate the injured party for the injuries sustained and nothing more. They proceed from a sense of natural justice and are designed to repair that of which one has been deprived by the wrong of another. (McKnight v. Denny, 47 A. 970; Morgan v. So. Pac. Co., 95 Cal. 501; 2 Words & Phrases, p. 1357.)

The rule of self defense being the same in civil actions as in criminal prosecutions what would justify one who is assailed by another in repelling the assault by force will shield him from damages in civil proceedings. (Baker v. Gausin, 76 Ind. 317; Tucker v. Wallers, 78 Ga. 232; Page v. Smith, 13 Vt. 251.) Where one acts upon appearance of actual and immediate danger, and sincerely believes that he is in danger of suffering great bodily harm, he cannot be held liable in damages for injuries resulting from acts done by him in the proper and reasonable defense of his person. (McNeil v. Mullen, 79 P. 169; Darling v. Williams, 35 O. St. 62; Gormolus v. Sausser, 85 N.W. 946; 1 Hawkins Pleas Cr. Sec. 23; 1 Russell on Crimes, 608.) Mayhem may be justified where it is inflicted after several blows have been struck, and the parties are engaged in close conflict. (Cook v. Beal, Lord Raymond, 177; 3 Salkeld, 115; Cockroft v. Smith, 2 Salkeld, 642; Oakes v. Wood, 2 M. & W. 791; Collins v. Renison, Sayer, 138.)

W. R. Stoll, for defendant in error.

The questions before the trial court were questions of fact merely, and that court had ample opportunity to give to the testimony of each witness the weight which it deserved. It perhaps was not strictly necessary that the map objected to should have been introduced in evidence, but it greatly assisted in explaining the testimony and the use of such an accessory has become quite common. To be prejudicial, error must be material. It is not the necessity for a particular line of evidence that determines whether or not it is error.

Whether injuries received by the plaintiff below were the result of an excess of force on the part of the defendant as found by the court was a question for the court as it would have been a question for the jury, and there being sufficient evidence to sustain that finding it will not be disturbed. We submit that no prejudicial error was committed as against the plaintiffs in error in the admission or exclusion of testimony. The amount of damages allowed are very small and clearly not excessive when the character and permanency of the injuries are considered.

BEARD, JUSTICE. POTTER, C. J., and SCOTT, J., concur.

OPINION

BEARD, JUSTICE.

The defendant in error, who will be referred to as plaintiff in this opinion, brought this action in the district court of Laramie County, against the plaintiffs in error, who will be referred to as the defendants, to recover damages for an alleged assault and battery. The case was tried to the court without a jury, resulting in a judgment in favor of plaintiff and against defendants for $ 727.75 and costs, and they bring the case here on error.

The district court found the facts to be as follows:

"1. That plaintiff and defendants entered into a fight, probably by mutual consent, and that the court is unable to satisfactorily determine which struck the first blow.

"2. That in said fight the court finds that the defendant, Newton D. Yount, used excess of force in repelling the assault and force used by plaintiff, as hereinafter set forth, and that the defendant, Frances Yount, did aid, abet and assist him therein.

"3. That during the fight which ensued the said defendant, Newton D. Yount, did violently seize the left hand of the plaintiff and...