The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1926-06-11
SUPREME COURT
From Moun,rail County

Daisy Powell, plaintiff and respond
ent, VS.. c. ?. Meters. defendant and
appellant.
Syllabus: T. Assignments OF err
rors, based upon the alleged insult
ficiency Of the evidence, misdirec-
tion of the jury, and rulings on the
admissibility of evidence, considered
and held for reasons stated in the
opinion, that they are without merit.
2. In an action to recover damages
for assault and battery. the burden is
on the defendant to prove his plea
of self defense. and when the battery
is provoked by the plaintiffs con
duct. the burden is on the defendant
to prove that no more force was used
than was necessary in defending
him self.
3. In eases not arising on contract
exemplary damages may be awarded
when the defendant has been guilty
of oppression, fraud or malice, actual
or presumed, and in an action for
assault and battery the malice neces-
sary to the giving OF punitory damag
es may be presumed from the wanton
and reckless manner in which the
battery was committed.
A. Exemplary damages are not re-
cOvcrable where provocation furnish
ed by the plaintiff affords a reason
able excuse for the assault. If.
however, the defendant uses exces-
sive or unwarranted force IN repel-
ling the aggrcssor, exemplary dam
ages may be awarded. For reasons
stated, it is held that the evidence
supports the finding that while there
was. excuse for technical battery,
the measures Of .reprisal adopted by
the defendant were so disproportion-
ate TO the provocation as to warrant
the inference OF malice and support
verdict for punitory damages.
>. In an action to recover damages
for malicious assault and battery, evil
dence of the pecunialy circumstances
of the defendant is admissible.
6. For reasons stated in the opin-
ion it is held that the verdict is not
excessive.
of Mountrail county, Hon. Geo. IL.
Moellring, judge.
Affirmed. Opinion Of the court
by Johnson. j. +. +. Wyckoff, Stan
ley, North Dakota, attorney for Plain
seid,. Stanley, North Dakota, attorney
From Wells County
State Bank of Bremen, corpora
ton, plaintiff and respondent, VS.. st.
Anthony & Dakota Elevator Com
pany, a corporation, and Edward Nell
son, defendants; st. Anthony &. Da-
kotx Elevator company, corporation,
defendant and annellant.
Su1lahnS. Whpra fha oyypap nf
tand executes crop mortgage cover
Ing q one-half interest in the crop
next maturing and subsequently
leases the land to a lessee with notice
hnder an arrangement whereby a
cash rental equivalent to the value
81 half the crop is to be paid to a
third party, as assignee of the lessor
md mortgag0r, it is held that the
Hen of the mortgage is not defeated
2. A tenant taking possession Of
lid with notice of valid out
standing crop mortgage, executed by
- lkndIOrd, and raising q crop ac-
eording to the stipulations OF the
fonse, brings the crop into existence
through the agency Of the mortgagor
svfkhir, the rule Of Donovan v. St
Anthony = Dakota Elevator CO., Z
&. n. Els, rs N. w. 500, and the
1aSrteaxe attaches Notwithstanding
2ffputAtionS for a cash rental.
Appeal from the district court OF
f. ells eepnfy, Hon. y. 4. Berry,
1fSirmed. Libby = Harris, Grand
1r4fks. sttOrneys for appellant. A
s5 Zuber, Fessenden, n. OAK, and
WsrtnsF, Harvey. n. Daks attorneys
lss;S< sxMrSs ~ fS1ffs