Vanoni v. Rood

STURTEVANT, J.

The plaintiff commenced an action to recover damages caused by an assault on him by the defendant. The defendant appeared and answered and a trial was had before the trial court sitting without a jury. The trial court made its findings and caused a judgment thereon

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to be entered in favor of the plaintiff. The defendant made a motion for a new trial, the motion was denied and he has appealed from the judgment under section 953a of the Code of Civil Procedure.

In his answer the defendant denied the material allegations of the complaint and pleaded affirmatively his justification for the alleged assault. On the issue of justification the trial court made several findings against the defendant and the defendant attacks those findings, claiming that they are not supported by the evidence. The plaintiff replies that the evidence was conflicting and that there was substantial evidence supporting all of the findings made by the trial court. To that reply the defendant answers, that since the repeal of section 1835 of the Code of Civil Procedure the trial courts must be governed by section 1826 and section 2061 of the Code of Civil Procedure. That answer is quite interesting and may be of much importance in a case which supports it; but we think the case at bar does not present facts which call for a ruling on the contention. In his opening brief the defendant says: “The appellant has not at any time contended that he did not strike the respondent with his fist or that the respondent did not suffer the injuries complained of as a result of the blow, and the appellant concedes that he struck the first blow, but urges that he was justified in his own defense according to the circumstances as they appeared to him at the time, and as they would have appeared to a reasonable man under the circumstances.”

It becomes necessary, therefore, to recite the “circumstances” as shown to the trial court. Miss Helen Stockham resides at Geyserville. The defendant W. F. Rood operates a general merchandise store at that place and there is some evidence that he is “going with” Miss Stockham and employs her as his bookkeeper and also employs other members of her family. Clement Vanoni is a young man twenty-two years of age who, since boyhood, has been acquainted with Miss Stockham and there is some evidence that he is also “going with” her. Some time prior to the tenth day of July, 1924, Miss Stockham and a girl friend, together with Clement Vanoni and his friend Veral Gore, had taken an automobile ride. On that ride something occurred which prompted Miss Stockham to report to the