Tennigkeit v. Winegar, et al.

No. 10,114. Tennigkeit v. Winegar, et al. Decided May 1, 1922. Action for assault. Judgment for defendants. Affirmed. 1. Appeal awd Ekbor — Fact Findings. Findings of fact by the trial court, on conflicting evidence, will not be disturbed on review. 2. Assault — Evidence. It appeared from the evidence that one of the defendants put his foot against a door in an effort to detain plaintiff and get him to surrender a deed which he had in his possession. Held, that the court was not bound to treat this as an assault. Error to the District Court of Kit Carson County, Hon. J. W. Sheaf or, Judge. Mr. Frank L. Hays,, for plaintiff in error. Mr. Louis Yogt, for defendants in error. [MAJORITY — Mr. Justice Allen] Mr. Justice Allen delivered the opinion of the court. This is an action for damages for assault. A trial to the court, without a jury, resulted in a judgment for defendants. The plaintiff sues out this writ of error. The main contention is that the judgment is not supported by the evidence. The alleged assault took place in the office of one of the defendants. On the occasion that the assault is said to have taken place, the plaintiff and one of the defendants had some conversation regarding the land transactions mentioned in the opinion in cause No. 10,115, Tennigkeit v. Bank, et al., 206 Pac. 798, filed at the same time as this opinion. The plaintiff testified to an assault, but from the evidence of defendants the court could find the contrary. One of the defendants put his foot against the door in order to detain the plaintiff and get him to return or deliver up a deed which he had in his possession, but the court was not bound to treat this as an assault. The judgment has sufficient support in the evidence. There was no reversible error in the admission of testimony. The judgment is affirmed. • * Mr. Justice Teller, sitting for Mr. Chief Justice Scott, and Mr. Justice Denison concur.