Dinan v. Gibbon

McKee, J. This was an action to recover damages as compensation for injuries sustained from an assault on the plaintiff alleged to have been committed by the defendants.

The case was given to the jury upon evidence tending to show that the alleged assault had been committed under the following circumstances: Defendant Gibbon and the mother of the plaintiff were owners of adjacent parcels of land in the city of San Francisco. There was a dispute between them as to the true division line of the lots. Gibbon had constructed near to what he believed to be the line a shed about ten feet high, the roof of which, according to the assertion of the plaintiff, projected over a part of his mother’s lot and came near to her house. Notice of the projection was given to the defendant, but he gave no heed to it. In that state of the question, the plaintiff on the 25th of September, 1876, took several men on to his mother’s lot to saw off that part of the roof of the shed which extended over so much of his mother’s lot as lay between her house and the supposed dividing line, and to move her house close up to that line. One of the men had mounted the roof of the shed and was in the act of sawing off the projection when the defendant, Quinlan, appeared on the balcony of the house on Gibbon’s lot armed with [389]a double-barreled shotgun, which Gibbon had loaded with powder and buckshot, and put in the hands of Quinlan, “ to watch his property against the Dinans.” To prevent Quinlan from using the gun against the person on the shed, the plaintiff and another caught hold of the gun and a contest resulted between the parties, in which the gun in the hands of Quinlan was discharged into the body of the plaintiff, severely wounding him.

On submitting the case to the jury, the court, among other things, instructed them as follows:—

“1. You are instructed that the controversy over this piece of land did not justify the use of fire-arms in its settlement; that a person has no right to use deadly weapons excepting it be in the defense of life or in the protection of his domicile. Those are the only cases in which a party is authorized under the laws of this State to use anything which is calculated to produce death.

“ 2. If you believe from the evidence that the defendant did use this weapon for the purpose of this transaction—for the purpose of producing great bodily injury—if he used it, in fact, at all, to resist the encroachment even of the plaintiff in this action, then it is your duty, under the law, to find a verdict against him for the actual damages which the plaintiff sustained, whether there was malice in it or not.