Chapell v. Schmidt

McFarland, J. This action was brought by Henry Y. Chapell, an incompetent person, by his guardian, to recover damages for an assault and battery committed on his person by defendant. The verdict and judgment were for plaintiff, and defendant appeals. Some time after the judgment was rendered the said Chapell died, and his administratrix was substituted as plaintiff.

There is no doubt from the evidence that the verdict was eminently just and proper. The jury were fully warranted in finding these facts: Chapell was an infirm old man with a passion for flowers. On August 9, .1893, he was passing the garden of appellant, in which, about four feet from the gate, there was a fuchsia bush in bloom; and, the gate being open, he went in and commenced to pick some fuchsias. The appellant, who was in the vicinity, observed Chapell plucking the flowers, and, rushing into the garden, he beat him'very severely with a heavy cane over the head, neck, shoulders, and back, without any request to leave or any warning whatever. Chapell, who was stooping over the bush at the time, made no resistance whatever, and appellant continued to beat him with great force until a lady who witnessed the occurrence sprang in between them and [513]induced him to desist. Chapell was severely injured by tlie beating and never recovered therefrom.

Appellant contends that the judgment should be reversed on account of three rulings which respondent’s counsel induced the court to make.

1. The court, at request of respondent, gave the following instruction to the jury: “If you find from the' evidence that the plaintiff was weak in mind at the time the alleged assault and beating is claimed to have taken place, then, as matter of law, I charge you that he should not be held to the same strictness in entering the garden of defendant and picking flowers therein as a person mentally sound would be.” It is difficult to determine whether or not, as applied to the case at bar, this instruction has any definite meaning. But conceding that it does mean something, and that it was erroneous, we do not see how it could have prejudiced the rights of appellant. There was no question about the right of respondent to enter the garden, and it was not claimed that he had such right. The court instructed the jury in various forms that respondent had no right to go into the garden, and told them, among other things, “that when a person enters within the inclosure of another without the consent of the other, and against his will, that is what is usually known as and called an unlawful breaking and entering,” and that if respondent entered the garden “ and was then and there engaged in breaking flowers or branches off his (defendant’s) fuchsia, then I charge you that he was doing an unlawful act, and the defendant had a right to order him out of his premises and use such reasonable force as might be necessary to put him out.” It is not reasonable, therefore, to suppose that an intelligent jury was led astray by the obscure and totally irrelevant instruction about “ strictness” above quoted. The question was: Did the appellant use unnecessary force in ejecting the respondent? And we are satisfied that the jury so understood it.