Hardy v. Schirmer

MELVIN, J.

This was an action brought by plaintiff for damages for personal injuries. Originally the wife of defendant was made a party to the action but at the close of the testimony for the plaintiff, the court granted defendant’s motion for nonsuit as to her. The jury rendered a verdict for plaintiff in the sum of nineteen hundred dollars and from the judgment entered thereon, as well as the order denying defendant’s motion for a new trial this appeal is taken.

The trouble resulting in the injuries to plaintiff occurred in a lodging-house owned by defendant who had just served on plaintiff’s brother a notice to pay rent or to vacate the premises within three days. After service of the notice defendant went down stairs, secured a hammer and returning was about to tack up in the hallway some cards containing the rules of the apartment house. Before this, however, he had some words with plaintiff’s brother who -was in the kitchen and the latter shut the door between the kitchen and the hall. At that moment, according to plaintiff’s testimony, defendant applied a vile name to plaintiff’s brother, whereupon plaintiff said: “There are others in the house.” At that, as he testified, defendant turned and struck him

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with the hammer. He called for help, his brother and'thé latter’s wife came to his assistance and finally defendant was disarmed but not until he had again struck plaintiff with the hammer. Defendant’s account of the affair differed greatly from that given by plaintiff. He testified that both brothers set upon him and that he only struck in self-defense.

Defendant assigns as error the ruling of the court whereby C. S. Hardy was permitted to testify regarding a conversation had with defendant’s wife two or three weeks before the assault. According to C. S. Hardy’s statement Mr. Schirmer had called witness down stairs to the • apartments occupied by defendant and his wife and in her presence had' asked Hardy if he knew who had caused his, Schirmer ’s, arrest for maintaining a cesspool. Then Mrs. Schirmer had said: “We are going to find out who had us arrested and we will have revenge if it takes ten years.” This was followed by further testimony that defendant subsequently expressed a strong belief that plaintiff had caused his arrest. The ruling admitting this testimony cannot be disturbed because the record before us does not show the grounds for defendant’s objection to its introduction. The record merely reveals the fact that objection was made to the admission of the testimony and was by the court overruled. In the absence of specification of the grounds of objection we cannot say that the ruling was injurious.