Frew v. Teagarden

Citations

• 111 Kan. 107
• 205 P. 1023
• 1922 Kan. LEXIS 186

Syllabus

<p>SYLLABUS BY THE COURT,</p> <p>1. Assault and Battery — In Defense of Servant — Reputation of Plaintiff as Dangerous and Fighting Man — Competent Evidence. In an action to recover damages for an assault committed, in defense of a third person, testimony was competent to show plaintiff’s general reputation for being a quarrelsome, dangerous and fighting man, and that this was known to the defendant.</p> <p>2. Same — Defense of Servant or Relative — Rule of Self-defense Applies. Plaintiff made an unprovoked assault upon a man twenty-one years of age who was in the employ of the defendant, and a relative by marriage. The assault occurred on the premises of defendant, who warned plaintiff not to strike the young man. Plaintiff struck him with his fist, and while attempting to strike him again, plaintiff was struck by the defendant with the broadside of a pitchfork, breaking his arm.. Held, that the principle of self-defense applies where one resists by force an assault upon a servant or relative.</p> <p>3. Same — Erroneous Instruction as to Justifiable Assault. In such a case an instructiqn that unless the jury found from a preponderance of the evidence that there was reasonable cause by defendant to apprehend that plaintiff designed to commit a felony or to do some great personal injury to the servant, and that there was immediate danger of such design being accomplished, the assault was not justifiable, and the verdict should be for the plaintiff, is held erroneous.</p> <p>4. Same — Use of More Force than Reasonably Necessary — Instructions. In such a case an instruction that the defendant would also be liable to plaintiff even if the jury found the assault was justifiable by the defendant if the latter used more force than was reasonably necessary to prevent a felony or to prevent the doing of great bodily harm to the third person, was erroneous, the rule being that one may use in the defense of a third person so much force as reasonably appears to him to be necess