Opinion
Decided February 6, 1934.
Appeal from Bell Circuit Court.
MARTIN T. KELLY and CHARLES A. JOHNSON for appellants.
E.N. INGRAM for appellee.
Reversing.
The appellee, Mrs. America Lock, recovered judgment for $1,000 against her uncles, Noah Howard and Henry Howard, for assault and battery. From that judgment they appeal.
Through a tenant, appellee's mother, Lucy Carmical, held possession of a small house near the home of Noah Howard. The tenant was moving on the day of the difficulty, and appellee had gone to the house at the instance of her mother, as she says, to see if he got out, and to stay there until the new tenant should arrive. Noah Howard, claiming ownership of the property and to have been employed by the tenant to move him, went over there, his brother, Henry, accompanying him. According to the plaintiff's evidence, Noah, with a rifle, and Henry, with a crowbar, came to the porch and dragged her into the yard, where they both viciously assaulted, beat, and kicked her without provocation. Noah shot at her also. The defendants insist that she assaulted them, or rather Noah, and he only fought the vicious woman in his necessary self-defense, and that Henry interfered as peacemaker. Mrs. Lock, who weighed only about 100 pounds, admits that during the melee she was insisting that Henry should let her fight it out alone with her uncle Noah. Although appellants contend it was otherwise, the evidence, in our opinion, was clearly sufficient to take the case to the jury.
We find no substantial error in the admission or rejection of evidence, but conclude that the judgment must be reversed for error in the instructions.
The instructions throughout coupled the two defendants, and did not leave to the jury the privilege of finding against one and for the other. Under the pleadings, their liability, if any, was several or individual and not joint. The instructions given are in the same form as those condemned in Wilder v. Bailey, 233 Ky. 238, 25 S.W.2d 381, where there was a claimed assault and battery by a number of police officers. It was held that, there being no charge of conspiracy or concert of action and each of the defendants being directly charged with the offense, the instructions requiring the jury to find for or against all of them were erroneous.
Wherefore the judgment is reversed.