
    Oscar Eisentraut, appellee, v. Charles Madden, appellant.
    Filed January 2, 1915.
    No. 17,738.
    1. Instructions to a jury in a lawsuit should be confined to and be in accord with, the evidence submitted upon the trial.
    2. Assault and Battery: Action for Damages: Defense. The rule that when, parties enter into a mutual combat, and the victim in good faith withdraws therefrom and is afterwards assaulted, he may recover damages for such assault, does not apply when one who is assaulted and severely beaten strikes his assailant immediately, in the heat of passion, upon escaping from his attack.
    Appeal from the district court for Johnson county: John B. Raper, Judge.
    
      Reversed.
    
    
      Neal & Armstrong, F. L. Dinsmore, E. F. Warren and E. B. Quaohenbush, for appellant.
    
      3. P. Davidson and Hugh LaMaster, contra.
    
   Reese, O. J.

This is an appeal from a judgment of the district court for Johnson county, wherein plaintiff, Eisentraut, recovered a judgment against defendant, Madden, for the sum of $1,500 on account of personal injuries alleged to have been inflicted upon plaintiff by defendant by unlawfully, and without cause, striking plaintiff upon the back part of the head with a large, heavy, metal scoop shovel, whereby a lasting and permanent injury was suffered by plaintiff, the character and extent of the alleged injuries being fully set out in the petition, together with plaintiff’s pain and suffering, physically and mentally. The amount sued for was $10,000. The petition also contains a second cause of action, by which the expenses of the sickness and ailments, consisting of physicians’ treatment and medicine, are alleged to the amount of $300, making a total of $10,300 damages alleged to have been suffered. Defendant answered (1) by a general denial; (2) alleging that plaintiff first made an unlawful assault upon him, that he resisted the same only in self-defense, and that he used only such necessary force as was required from the assault and beatings inflicted upon him by plaintiff; (3) that, at the time mentioned in the petition, plaintiff, without lawful excuse or provocation, assaulted defendant, striking him, knocking him down, beating him when down, and inflicting a permanent injury to his right eye, by which the sight of his said eye was greatly and permanently impaired, and, in addition to his pain, suffering and mental anguish, he has been compelled to undergo treatment for his eye at heavy expense, and that he has thereby been damaged in the sum of $10,500, for which he asks judgment. Éeply, a general denial. A jury trial was had, with the result above stated. Defendant appeals.

The evidence is conflicting in many respects, but, so far as the facts concerning the alleged assaults are concerned, there is practically an agreement. There was some difficulty between the parties, Avhich seems to have been of a trivial nature. Plaintiff Avas a school district officer, but, upon the expiration of his term of office, was succeeded by defendant, who claimed there had been some slight irregularity in keeping the books of the office. Owing to some assertion by plaintiff as to his knowledge and ability to properly keep his accounts, defendant styled plaintiff as “Professor,” which seemed to nettle him. At times harsher epithets were used by both parties, but this consisted of words only. On the 3d day of December, 1910, a neighbor was engaged in shelling corn, and these parties were called in to assist. Upon defendant’s arrival at the place of the shelling, he passed near plaintiff, when he gave his apparently usual salute, “Hello, Professor.” This angered plaintiff, who immediately ordered defendant to cease “calling him names.” He approached defendant in a menacing manner, shaking his fists, and cursing violently, but to which defendant made little, if any, response, standing still, but holding his scoop shovel in such a position as to ward off any blows which plaintiff might attempt to inflict. Plaintiff succeeded in breaking defendant’s guard, striking him in tbe face, knocking him down, and immediately sprang upon him, beating him about tbe face, in tbe course of wbicb assault defendant received an injury to bis eye, wbicb is claimed to be permanent. Defendant, being unable to protect himself, called to bis son, who was near-by, to take plaintiff off, which be did. Up to this time plaintiff seems to have been tbe sole aggressor. Upon being taken off defendant, be started to walk away, probably with 'bis side to defendant. Upon being released, defendant picked up bis scoop shovel and struck plaintiff upon tbe bead with the bowl or under side of the shovel, inflicting a small flesh wound, and which felied plaintiff to tbe ground. . Tbe alleged injury to plaintiff appears not so much to be tbe superficial wound itself as tbe effect of tbe blow upon tbe nervous system. Tbe injury to defendant is alleged to be a rupture to the muscles and membranes of tbe eye, involving tbe retina and other parts of tbe inner eye, caused by tbe blow on tbe eye when defendant was knocked down, or thereafter while be was on bis back receiving tbe blows inflicted by plaintiff. From tbe testimony of physicians and surgeons, as well as other witnesses, it would seem that both parties received more or less serious injuries, from which complete recovery is, to say tbe least, in doubt.

There is practically no conflict in tbe evidence as to tbe beginning of this unfortunate affair. While it was not in good taste for defendant to be derisively calling plaintiff “Professor,” yet it did not charge him with the commission of any offense against tbe laws of the state, nor of tbe United States, nor did it accuse plaintiff of the violation of public morals, nor in any way slander him, nor bold him up to public contempt, ridicule or scorn. It was not intended as a pleasantry,' perhaps, and yet could scarcely be considered so exasperating and defamatory as to excuse tbe assault which followed. The evidence shows that defendant committed no act which could be construed as a physical attack upon plaintiff, nor a desire to enter into a contest of that kind. Plaintiff was angry, and approached defendant in a menacing manner, using language which could not be approved in polite society in any ordinary parlor conversation. Prior to the striking of the blow by plaintiff which felled defendant to the ground, defendant’s actions were not aggressive, but rather indicated a desire to protect himself against the actual attack of plaintiff. Plaintiff could have withdrawn at any time before striking .defendant, and the subsequent events would not have followed. He succeeded in striking defendant, knocking him down, when he sprang upon defendant and followrecl up the attack by striking and pounding him, until defendant, apparently becoming satisfied that, under the circumstances, he was no match for plaintiff, called for help, and plaintiff was, by force, removed. It may be assumed that defendant was not in the most pleasant frame of mind by that time, and not calculated to act with cool judgment and deliberation. Upon being released, he seized the shovel and dealt the blow of which plaintiff complains, felling plaintiff to the ground. Plaintiff arose, declaring in emphatic and forceful language, but not elegant, that he could whip defendant, but this seems to have closed the incident for the time being.

It is contended by plaintiff that he had abandoned his attack and was moving away when he received the blow complained of; but, if so, the distance to which he had gone is not clearly stated. However, it seems quite clear that he was not far enough away to have given defendant sufficient time to do much in the way of reflection. Otherwise stated, the blow with the shovel was not so long after the castigation received by defendant as to justify holding 'it to be a separate transaction and not a part of plaintiff’s attack. Plaintiff was the aggressor. He committed an unlawful assault upon defendant, the final result of which was evidently not satisfactory to him. To use a common expression, he “got the worst of it.” The question then arises: “Can plaintiff, after assaulting defendant, knocking him'down, and inflicting an injury upon him, recover damages for what he has suffered and is suffering, which are the natural result of his own act?” We use the words “natural result,” not in the sense of a resulting or necessary effect of previous conditions, but those which might be looked for or expected, when considering the natural effect the treatment, or punishment, suffered by defendant would have upon an ordinary human being. Defendant was smarting under the injuries which he had received. Plaintiff, apparently satisfied - with what he had done,, claims that he turned to move away, when defendant continued the affray by striking plaintiff.

A kindred question arose in Fosbinder v. Svitak, 16 Neb. 499, where we held that a plaintiff could not recover where-he had been the original assailant, the first wrongdoer, and, upon receiving injuries resulting from the affray brought on by himself, transfer his cause from the battlefield to the courts. A somewhat similar question was presented in Taylor v. Clendening, 4 Kan. 524, although not based. upon exactly similar facts. In that case the-plaintiff was held to be the aggressor, but his withdrawal from the affray was not as claimed in this case. The-court say: “He cannot undertake to wreak an (un) lawful vengeance upon his antagonist — pistol in hand — and, defeated, sue him for damages to the person, upon the basis-of the instructions. He must run his own risk. Nor would it be an easy matter for the party, attacked in the manner-narrated in the testimony of the defendant, to act with all the deliberation the instruction would seem to require. In the heat of blood he could hardly be expected to weigh his words or to measure or count his blows or shots very carefully.”

At the request of plaintiff, the court gave to-the jury the following instruction: “The court instructs the jury' that the defendant alleges that he acted in self-defense. You are instructed that the law does not permit a person to voluntarily seek or invite a combat, or put himself in the way of being assaulted, so that when hard pressed he may have a pretext to injure his assailant. The right of self-defense does not imply the right of attack, and it will not avail in any case where the difficulty is sought for and induced by the party by any wilful act of his, or where he voluntarily and of his own free will enters into it. The necessity, being of his own creation, shall not operate to excuse him. Nor is any one justified in using more force than is reasonably necessary to get rid of his assailant. Now, if you believe from the evidence in this case that the defendant, Madden, voluntarily sought or invited the difficulty in which the plaintiff, Eisentraut, was injured, if you believe from the evidence that he was injured, or that the defendant provoked or commenced or brought it on by any wilful act of his own, or that he voluntarily or of his own free will engaged in'it, then and in that case you are not authorized to find for the defendant upon the ground of self-defense. In determining who provoked or'commenced the difficulty or made the first assault, you should take into consideration all the facts and circumstances in evidence before you.”

As we view it, much of this instruction cannot be applied to the evidence in this case. Assuming that the words,. “Hello, Professor,” can be construed as offering a direct insult, one that would, ordinarily, cause anger pn the part of plaintiff, we are yet met with the well-established rule that mere words cannot justify an assault upon the person using them. There was therefore .no legal excuse which could justify the attack of plaintiff upon defendant, which the evidence clearly shows he made. Without any just cause or excuse, he made such an attack, knocking defendant down. Plaintiff seems not to have been satisfied with the injury thus inflicted, but followed up the' advantage thus gained by springing upon defendant and administering further beatings until defendant called for help, and plaintiff was forcibly pulled off the prostrate body of his victim. We find nothing in the evidence showing that defendant did “voluntarily seek or invite a combat, or put himself in the way of being assaulted, so that Avhen hard pressed he may have a pretext to injure his .assailant.”' Nor can we apply the direction that “the right of self-defense does not imply the right of attack, and it will not avail in any case where the difficulty is sought for and induced by the party by any wilful act of his, or where lie voluntarily and' of his own free will enters into it. The necessity, being of his own creation, shall not operate to excuse him.”

The instruction .also submits to the jury the proposition that, if defendant voluntarily sought or invited the difficulty, or if defendant provoked or commenced or brought it on by any wilful act of his own, or if he voluntarily or of his own free will engaged in it, the jury would not be authorized to find for defendant upon the ground of self-defense. There may be no question but that the instruction is sound law when applied to a state of facts coming within the rule, but, as w.e read the evidence, there was nothing therein to which the rule could be applied, and we are persuaded that the instruction, as written, should not have been given. From an examination of the instructions given on the court’s own motion, it is clear that the law was fairly and fully presented to the jury, and all well within the issues in the case, and should have been sufficient.

Substantially, the same instruction was given and approved in Morris v. Miller, 83 Neb. 218, annotated in 20 L. R. A. n. s. 907; but there is a clear distinction between the two cases. In the Morris case the parties to the affray voluntarily and mutually agreed to enter into the contest, and both were wrongdoers. Therefore the instruction was properly given in that case. As we have'shown, the facts in this case were quite different. The rule stated in Glassey v. Dye, 83 Neb. 615, is more clearly applicable to the facts of the case at bar than that of Morris v. Miller, supra.

While we recognize the established rule that, if a plaintiff wrongfully assaults a defendant, and, upon reflection, or for some other reason,-voluntarily withdraws from the conflict, the person assaulted is not justified in following up the withdrawing party, and, after time for reflection, inflict a neAV and counter assault, and he may, in a proper case, be held liable for any damage arising from his wrongful assault; but that rule must be applied in reason and Avith a proper consideration for the passions and infirmities of humanity. In this case the assault was committed by plaintiff with no legal justification or excuse. Had he voluntarily withdrawn from the contest after knocking defendant down, defendant might have been placed in the Avrong, had he deliberately followed plaintiff, as he retreated, and reneAved the contest by a counter assault; but- that is not this case. After striking defendant and knocking him down, he sprang upon him, following it up by beating and pounding defendant, while down, until forcibly pulled off by others who came to defendant’s relief. He was certainly willing to continue the punishment of defendant until forcibly compelled to desist. Defendant, while suffering and smarting from the injuries which he had received, arose from the ground, picked up his shovel, which was not necessarily a deadly or dangerous weapon, and gave the blow of which plaintiff complains. Plaintiff is entirely willing to forgive and forget the injuries inflicted upon defendant, but seeks to recover a money compensation for the injury he received in the affray which he inaugurated and folloAved up until compelled by force to desist, and which was immediately followed by what he received. '

We are constrained to believe-that the instruction above quoted should not have been allowed.

The judgment of the district court is reversed and the cause is remanded for further proceedings.

Reversed.

Letton and Rose, JJ., not sitting.

Sedgwick, J.,

concurring.

■ The majority opinion seems to hold that the evidence establishes that the blow of which this plaintiff complains was so connected with the affray which the plaintiff himself brought on that it must be regarded as a part of that affray. If this is the necessary conclusion from the evidence of course the judgment is Avrong. I think that the instruction set out in the opinion Avas not applicable to the evidence, and was therefore erroneous. It was highly prejudicial to the defendant. For this reason I concur in the reversal of the judgment.  