Larson v. Larsen

LANGDON, P. J.

This is an appeal from a judgment in favor of plaintiff for five thousand dollars in an action for damages for personal injuries.

Plaintiff is a boy thirteen years of age and sued by his guardian

ad litem,

charging that the defendant willfully, unlawfully, and wrongfully assaulted him on August 15, 1922, at defendant’s ranch near the city of Fresno, by shooting plaintiff with a shotgun, causing the injuries enumerated in the complaint.

In view of the conclusion we have reached with reference to the action of the trial court in admitting certain testimony over objection, we shall not discuss the facts of the case more fully than is necessary to show the effect of such testimony.

The defendant denied the shooting. The evidence offered by plaintiff was largely circumstantial. Defendant owned a vineyard near Fresno. Plaintiff went upon this property and was attempting to pick some grapes when he received a charge of birdshot in his legs, the shot scattering from his knees down. He testified that after he was shot, he saw a man about fifty or sixty feet away from him with a gun in his hand. He said this man was tall, slim, and had dark clothes on.' The deputy sheriff told of visiting the home of defendant after the shooting and that the defendant denied he had fired at the boy; that the deputy sheriff found apparently fresh tracks from approximately the spot where the plaintiff said he saw the man standing with the gun to the home of defendant. There were also other tracks all over the orchard where someone had been plowing. The case of plaintiff had to rest upon the inferences to be drawn from these and a few other circumstances such as the evasive and rather hostile attitude of the defendant when questioned

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about the matter, except for the testimony which furnished the ground for the main attack upon appeal. That testimony was given under the following circumstances: The defendant was called as a witness for plaintiff under section 2055 of the Code of Civil Procedure. After he had denied knowledge of the shooting, he was asked: “Q. You had used your gun prior to the 15th of August of last year for the purpose of shooting at other boys who came in there, in your vineyard, had you not?” The question was objected to as incompetent, irrelevant, and immaterial and the objection was overruled. Defendant was then asked: “You shot at other parties before that time, didn’t you? A. No, sir. . . . Q. Didn’t you shoot at another boy there in your orchard with your shotgun ? A. No, sir. Q. Prior to the 15th of August. A. No, sir. Q. You did not? A. No, sir, not that year. Q. How is that? A. Not that year. Q. Not that year? Did you do'it the year before? A. Well, I have tried to scare boys a couple of times with it. Q. Answer the question, did you shoot toward boys with your shotgun the year before, out there at your orchard. A. I tried to scare them a couple of times. Q. What did you do in trying to scare them, did you discharge the shotgun toward them? A. I shot in the air. Q. Do you know whether or not you hit them? A. No, I didn’t. Q. How many boys did you shoot at prior to the 15th of August, last year with the shotgun? A. I couldn’t tell you. Q. How is that? A. I couldn’t tell you. Q. Can you approximate and tell about how many you shot at? A. No.”