Carr v. Neva ( 1917 )

Robinson, J.

This is an action to recover damages for a grave and unprovoked assault and battery. On evidence showing the guilt of each defendant beyond a reasonable doubt, the jury found a verdict against them. From the judgment they appeal to this court and assign about eighty errors, based on objections and exceptions. To nearly every simple question the counsel has appended needless objections and exceptions or motions to strike. But such objections and exceptions are not a legal tender, and are no cause for vacating a verdict and judgment based on clear and convincing evidence. When a party commits a brutal and unprovoked assault and battery, it is folly to think of paying off and making a settlement by any number of legal quibbles. The only real question is, Has the defendant had a fair trial and is the verdict well sustained by the evidence ?

The plaintiff is an attorney of Jamestown, and at the time of the assault he was on the farm of Andrew Neva hooking and superintending proceedings of a friendly chattel-mortgage sale. The defendants are related. They went together and sought an opportunity to insult and quarrel with the plaintiff. He is not a fighter. He had no officer present at the sale to protect him, and he tried to avoid a quarrel, and said he did not want any trouble with them. When his eyes were turned away, Peter Neva struck him a violent blow on the mouth, breaking out two of his front teeth. The parties clinched and in the struggle Peter fell or was brought to the ground. The plaintiff let him up on demand of the other defendants. Plaintiff then started for his car, and was about to enter it when Peter Neva struck him a violent blow on the nose, fracturing the bone. The other defendants stood by and urged Peter to go after him. Peter was arrested and brought before a justice of the peace. He pleaded guilty and paid a fine of $25. On the trial in 'district court there was a question concerning the jurisdiction of the justice of the peace and the admissibility of his docket in evidence. Hence, the offer of such evidence was withdrawn, and the justice testified the .same as any other person might to the admissions made to him by Peter Neva. The record of the trial covers 348 pages. It appears that Joe Koenig is a brother-in-law of the Nevas, who are brothers. The sale was at the farm of Andrew Neva. The three defendants were there during the sale. John Neva claimed a prior mortgage on a small part of the property, and he said to plaintiff: “What are you sons of bitches going to do about my mortgage?” During the sale every time plaintiff came near John Neva he would say: “I would like to see those sons of bitches foreclose a mortgage on my property. I would like to see them after dark.” He said at different times: “Why don’t the sons of bitches pay my mortgage ?” The other defendants would say: “That is right John; make him pay you.”

Plaintiff testifies: “I went to the door of the barn to see the cattle, and he stepped up to me and said ‘When are you sons of bitches going to pay my mortgage?’ The other defendants were standing by him. Then Joe Koenig came out of the barn and walked around in front of me, and walked directly up against me, and said: ‘Oh! Excuse me; I did not see you.’ In two or three minutes later he came back from the barn and again bumped against me from the back. Then he said: ‘Excuse me; I did not see you.’ And the other defendants smiled. They watched and laughed. He used the words ‘sons of bitches’ about continuously for about two hours prior to the close of the sale. At the close of the sale, when most of the people had gone home, defendants came up and stood around. Finally, Peter stepped up and said: ‘Do you know what I would do if you sons of bitches were foreclosing a mortgage on my farm ?’ He said, ‘I would like to see you sell the stuff that I had a mortgage on you cowardly sons of bitch.’ I turned my eye from him a moment. He drew back and struck me across the mouth. The blow broke out these teeth (his two front teeth). He struck me again, and I warded off the blow and grabbed hold of his arm and shoulder and pushed him back. He kicked me with his right foot on the abdomen, and John Neva and Joe Koenig said at this time: ‘Go after the son of a bitch; go after him.’ He continued trying to strike me. I wrestled with him and threw him down, and he fell on his stomach. I let him up, started toward the automobile. He followed me up and finally landed another blow on the end of my nose. It caused the blood to sputter all over my face, and as I took out my handkerchief to wipe it off, he came up quietly and struck me on the left side of the nose and fractured the bone on the left side of my nose.”

Bonhus was at the sale and fully corroborates the plaintiff, and he testifies that the other defendants made no effort to rescue Carr from Pete; they said, “Co after him Pete.” I heard Koenig’s voice say: “The son of a bitch.” They urged him on. John Neva hollered: “Give him another one, Pete.” So Pete came over and struck him again.

Dr. Gerrish examined and treated Carr the morning after he was injured. He testifies that Carr’s mouth and lips were cut in two or three places and very badly swollen. He had two front teeth broken out or off. He had a broken nose right along the side. He had a black eye. The doctor saw him once or twice every day for two weeks, and thinks the fracture of the nose is a permanent affliction. The doctor’s bill was seventy-five or a hundred dollars.

Dentist Reardon testifies that on examination of the plaintiff he found two front teeth broken off the upper jaw and the gums were badly bruised.

Hammerstaedt, the auctioneer, well corroborates the plaintiff’s testimony.

Theodore Anderson saw the conflict, and he saw Neva strike Carr.

John Neva testified thus: “I said little brother go to him. Go to the son of a bitch.” (197.)

No person can read over the testimony without being satisfied that the verdict is just and in moderation. Indeed, it should have been for a much larger sum.

As a counterclaim Peter Neva by answer averred that he was damaged to the amount of $1,000, by injury received in the scuffle with Carr. To this there was a demurrer, which was sustained by an oral ruling, and the parties went to trial. • The ruling is of no consequence. The parties went to trial, and were given ample opportunity to prove all the facts and circumstances in regard to the matter of dispute, and the testimony shows beyond all question that the defendants were the aggressors from start to finish, and they were each guilty of an unprovoked and brutal assault and battery. Judgment affirmed.