Kopplekom v. Huffman , 12 Neb. 95 ( 1881 )

Lake, J.

The first five of the alleged errors relate exclusively to the official bond on which the action was brought. .That the plaintiffs in error, as principal and sureties, actually executed an official bond for Kopplekom as sheriff, is not •denied by the answer. The statements on this point are evasive. In effect, the denial is simply that they never “made their writing obligatory, as copied and set out in said petition;” and that the instrument “as mentioned' and described in said petition,” was never “approved according to law,” An effort seems to have been here made by the pleader to take advantage of an evident clerical error in the wording of the bond itself, and also in copying it, by which certain words were omitted, or used, which ought not in strictness to have been, Por instance, by the terms of the bond, as made, it runs to: “The people of the State of Nebraska,” whereas it should have run to Dodge county, as the statute provides. This irregularity, however, cannot be taken advantage of by the sheriff or his sureties as we held in Huffman v. Kopple■kom, 8 Neb,, 344, Again, in copying a portion of the ■bond into the petition, the clause, “and these presents are upon this condition,” between the last two words, the term “express” is inserted in the copy. And by still another error in copying, the phrase, “according to law and the best of his ability,” is given as being, “according to law, and to the best of his skill and ability,”

These variances could not possibly have misled, or in the slightest degree prejudiced the plaintiffs in error. They were therefore properly treated by the court as immaterial. “ No variance between the allegation in a pleading and the proof is to be deemed material, unless it have actually misled the adverse party to his prejudice, in maintaining his action or defense upon the merits.” Sec. 128, code of civil procedure. It is not even claimed that these parties were misled; therefore, there being no merit in the objection, the bond was properly admitted in evidence.

The next objection in order is that made to the testimony of the witness Lang, “ that August Kopplekom was sheriff of Dodge county.” Had it been necessary to prove that Kopplekom was then sheriff, the testimony of this witness would have been pertinent and proper for that purpose. But, under the pleadings, this proof was superfluous, for, by the answer, it stood admitted that he was such sheriff, and that while in the lawful discharge of his official duty, he did the act complained of. Indeed, the injury to Huffman is sought to be justified on the ■sole ground that it was done in the lawful attempt to arrest him under the honest belief that he was really an ■escaped prisoner, charged with a felony.

A very large number of errors are alleged respecting the rulings of the court upon the admissibility of evidence. We have examined the bill of exceptions with care respecting this complaint, and noted the several points on which reliance is placed for a reversal, but fail to find anything to which exception could be justly taken. The several rulings of the judge in this particular seem to have been entirely fair throughout, and, as to the plaintiffs in error, quite as liberal as was possible. The alleged errors in this respect must, therefore, be overruled, and we pass them without further comment.

It is also claimed that errors were committed in the charge to the jury, both in refusing certain instructions requested, and in giving others to which exceptions were taken. As to those requested, which the judge refused, being two in number, we need only say that the substance of the ruling thus sought was fully included in an instruction which the court gave in far more appropriate terms, and with especial reference to the testimony by which the sheriff sought to justify his conduct on the occasion of the attempted arrest. Having fully covered the ground, by the charge as given, it was not error to' refuse requests covering the same ground, and differing, not in substance, but in phraseology only. One full and clear instruction upon a given point is enough.

The instructions given, which are complained of, are four in number. In substance they were as follows:

First. That if the jury found for the plaintiff (defendant in error) they should assess his damages at such sum as they might believe him entitled to, “from a full and fair consideration of all the facts and circumstances in evidence before them touching the injury complained of.” That the amount allowed “should be such sum as will compensate the injured party for such loss of time, physical pain, and mental distress as are fairly and reasonably the plain consequences to him of the injury;” that if the jury found, the injury to be “permanent, then in fixing the amount of damages they should take into eon: sideration the nature and extent of the injury in all its ■fair and reasonable consequences, and include future as •well as present disability.”

Second. That if the jury found that Kopplekom shot Tand broke the plaintiff’s leg, and at the time of doing so, had a writ of mittimus for the custody of the escaped prisoner Clark, but that he had no other process for the arrest of the plaintiff; that the defendant Kopplekom •did arrest and take the plaintiff into his custody, as such sheriff, and against the wish and consent of the plaintiff; that the plaintiff broke loose from the arrest and custody of the defendant Kopplekom, to effect his escape therefrom; that the shooting and injury was done to prevent the plaintiff from escaping, and freeing himself from said arrest and custody; that the defendant mistook the plaintiff for the escaped prisoner Claris:. Yet if the jury further find that said defendant Kopplekom might by the ■exercise of due, care and diligence have ascertained that the plaintiff was not said' Clark, then the jury will find for the plaintiff.”

Third. That, “ before an officer can resort to extreme measures to prevent an escape from an unauthorized arrest, he should exercise a high degree of care and diligence in ascertaining whether he has the right or wrong-man.”

Fourth. That in finding their verdict the jury should be governed by the “ preponderance of evidence.”

As to these four instructions we will only add that they undoubtedly state the law correctly, and the exceptions to them must be overruled. Under the pleadings the real question in issue was simply whether in what he did in and about the arrest, and attempted detention, of the •defendant in error, he was wanting in that reasonable ■care and caution which is due to the safety and rights of the innocent. That question was properly presented to the jury by the charge, and we see no reasonable ground •of complaint in anything that the court did.

The substance of the remaining objections to be considered is as to the finding of the jury upon the facts. Finding no error either in the admission of evidence, or the instructions of the court, the only remaining inquiry for this court is simply whether, from the facts and circumstances detailed before them, the jury were warranted in finding that the great and permanent injury done to-the defendant in error was the. direct result of negligence* on the part of the sheriff in the discharge of official duty, The fact that the act complained of was done in the discharge of official duty is set at rest, as we have-already seen, by the answer. Therefore, the material inquiry for the jury was as to the alleged negligence. The testimony on this point is very voluminous, covering several hundred pages of manuscript, and no valuable purpose could be served by copying, or by giving a fair synopsis of it here. Suffice it to say that, although somewhat conflicting, especially on minor points, it was certainly sufficient to warrant the finding of the negligence charged, and we even fail to see how a different-conclusion from that wrought out by the jury could in-reason have been reached. There is no reason, therefore, for disturbing the verdict on this ground. As we-find no substantial error in the matters complained cf the-judgment of the district court must be affirmed.

Judgment Affirmed.