Johnson v. Daily

ELLISON, J.

This is an action for assault and battery in which plaintiff obtained judgment in the trial court.

The evidence showed much ill-feeling between the parties had existed for a considerable period. They were relatives and neighbors residing in the country in Harrison county. Finally they met in the public road. Defendant in his buggy passed plaintiff who was walking in the road. The buggy wheel brushed against plaintiff and thus started a fight between them resulting in defendant committing the assault with a hammer. Who was the aggressor was a matter of dispute between the parties. As to whether there was any occasion for self-defense on defendant’s part was likewise a matter of dispute. Indeed, such was the state of contradictory evidence in the cause, we need not go into any detailed statement of it, since it was all submitted to the jury who found in plaintiff’s favor, and since we must abide by that finding it is only cumbering the record to set forth what the evidence was upon which the jury acted.

We will therefore address ourselves to the criticism made of the instructions. One was given for plaintiff wherein it was declared that if defendant violently and wilfully beat and wounded the plaintiff, then the verdict should be for him unless plaintiff first made an attack on defendant and that he resisted such attack by using no more force to- repel it than was necessary. Defendant claims that instruction to be in conflict with No. 2 given at his request, wherein the jury were told that if they believed the defendant apprehended that plaintiff was about to do him some great bodily harm and that there was reasonable cause for believing the danger was /imminent and that such danger was about to fall upon him, then he had a right to act on appear-* anees and to use such force as seemed necessary to avoid the danger, and he was not required to nicely gauge the amount of force necessary to repel the as *538 sault. The first of these directs in plaintiff’s behalf that if defendant assaulted and beat plaintiff, then the finding should, be for him unless it appeared from the evidence that plaintiff first attacked him and he resisted with no more force than was necessary. Speaking in general terms, the second directs in defendant’s behalf, and in keeping with his defense, that though he may have assaulted plaintiff, yet he had a right to make such assault if the appearances justified him in judging from plaintiff’s actions that plaintiff was about to inflict great bodily harm upon him. We do not see any such conflict between them, when read together, as would justify us in saying that they would mislead or confuse the jury.

Instruction numbered 2, given for plaintiff, is said to be erroneous in that it states that defendant admits striking the plaintiff. In our opinion the evidence justified the instruction'. In view of defendant’s statements in his testimony in his own behalf it would be idle to deny that he conceded or admitted striking the plaintiff. It is insisted that the instraction put the burden of proof on the defendant. The rule is that while the plaintiff has the burden of making out his case of assault upon himself, yet when he shows the assault, it is presumed to be unlawful and he is not required to go further and prove that it was not made in defense of the person of his assailant. That is an excuse or justification for the assault which must be proved by the party who offers it. In Orscheln v. Scott, 90 Mo. App. 352 , we reviewed the decisions of the Supreme Court, as well as other authorities on this question, and need do no more than refer to that case.

Objection is urged against the propriety of instruction Nos. 3 and 5, given for the plaintiff. The latter permitted as a part of the measure of damages humiliation and disgrace if suffered by plaintiff by reason of the assault. The evidence justified the instruction and the *539 objection is not well taken. The former submitted the hypothesis of defendant bringing on and provoking the difficulty, in which case he could not invoke the right of self-defense to shield himself from the consequence of his own wrong. The entire evidence considered, and reasonable inferences to be drawn from much of it abundantly justified the instruction. It is true, as said in State v. Walker, 196 Mo. 73 , “it is error for the trial court to frit away the right of self-defense by inviting the jury to enter the field of conjecture,” but the record here does not present such a case.

There is no just ground to complain of the refusal of defendant’s instruction numbered 7. It was substantially embodied in No. 2, given for him.

Finally there is a statement in a very general way that “the court erred in admitting inconipetent, irrelevant, immaterial and illegal evidence on the part of the plaintiff over the objection of defendant, and in rejecting material, competent and legal evidence offered on the part of the defendant.” There is then set out near five pages of evidence. Much of this related to some difficulty between the parties several years prior to this. Some of it tended to inquire into the merits of ill-feeling between one or more witnesses and one of the parties. Some of the objections were extremely technical. It may, however, be safely said that no ruling in the particulars objected to, materially affected defendant’s rights; nor do we see that they were in any way prejudicial to the merits of the controversy. Especially is this true in view of the reasons given by the court accompanying several of the rulings made.

We do not feel that we would be justified in condemning the verdict as being' excessive. The jury believing the case to exist as presented by the evidence in plaintiff’s hehalf, we cannot say that the amount of the verdict will allow its being declared to be the result of passion and prejudice.

*540 A careful examination of the entire record has failed to disclose any substantial error materially affecting the merits of the case, and the judgment must therefore he affirmed.

All concur.