Schafer v. Ostmann
| Decision Date | 31 May 1910 |
| Citation | 129 S.W. 63,148 Mo.App. 644 |
| Parties | HENRY SCHAFER, Respondent, v. HENRY OSTMANN, Sr., and WILLIAM OSTMANN, Appellants |
| Court | Missouri Court of Appeals |
Appeal from Lincoln Circuit Court.--Hon. James D. Barnett, Judge.
Judgment reversed and cause remanded.
R. L Sutton and Wm. H. Clopton for appellants.
(1) The court erred in refusing to instruct the jury that there could be no recovery for punitive damages, for the reason that the petition itself does not allege either malice or wantonness. (2) Plaintiff's instructions numbers 2 and 3 are erroneous in that they authorize a verdict against Henry Ostmann, Sr., without regard as to whether or not he acted in concert with his co-defendant. Instruction number 4 is erroneous in that it authorizes a verdict against defendant William Ostmann, without regard as to whether or not he acted in concert with his co-defendant. Instruction number 5 is erroneous in that it directs the jury that if they find for the plaintiff, they should award him damages for all injuries suffered by him, caused by the acts of defendants acting independently, or in concert. All of said instructions taken together are erroneous in that, when read together as a whole, they authorize a joint verdict against both the defendants without regard to whether they acted in concert or not in making the assault. An assault and battery is an intentional wrong, and there cannot be a joint verdict against defendants unless they conspired and co-operated with each other in making the assault. Thomas v Werremeyer, 34 Mo.App. 668; Barton v. Barton, 119 Mo.App. 531; Leavell v. Leavell, 114 Mo.App. 25; Leavell v. Leavell, 122 Mo.App. 654; Nichols v. Nichols, 147 Mo. 387; Williams v. Sheldon, 10 Wend. 654; Watt v. Ogden, 12 Wend. 39; Weakley v. Roger, 3 Watts 460; Frantz v. Lenhardt, 56 Penn. St. 365; State v. Jones, 83 N.C. 605; Lamb v. People, 96 Ill. 73; Hill v. Combs, 92 Mo.App. 251; Graham v. Ringo, 67 Mo. 326. (3) The court erred in admitting evidence of the wealth of the defendant, Henry Ostmann, Sr., and in directing the jury by instruction number 6 that they could take into consideration the pecuniary condition of the parties to the suit in estimating punitive damages. The plaintiff sought and obtained a joint verdict against both defendants, and it was not proper for the jury to be permitted to consider the wealth of one of the defendants as against the other. Plaintiff having voluntarily joined several defendants, he must be held to thereby waive any right to recover punitive damages against both founded upon the ability of one of the defendants to pay them. Leavell v. Leavell, 114 Mo.App. 34; Gas Co. v. Lansden, 172 U.S. 534, 552; Smith v. Wunderleich, 70 Ill. 426; Railroad v. Smith, 57 Ill. 507; McCarthy v. DeArmit, 99 Pa. St. 63; Nichols v. Nichols, 147 Mo. 387. (4) Plaintiff's instruction number 5, on the measure of damages, is erroneous in that it directs the jury to find punitive damages against both defendants, if they believed the assault made by one or both of them was maliciously made. This is a clear instruction to the jury to find punitive damages against both defendants in case either one of them acted maliciously, regardless of whether they acted in concert or not. Boutwell v. Marr, 71 Vt. 1; Pardridge v. Brady, 7 Ill.App. 639; Hair v. Little, 28 Ala. 236; McCarthy v. DeArmit, 99 Pa. St. 63. (5) Plaintiff's instruction number 6 is erroneous in that it commissions the jury to consider the position in society of the parties to the suit, whereas there was no evidence of their position in society. Gessley v. Railroad, 26 Mo.App. 161; Friedman v. Pub. Co., 102 Mo.App. 694; McKeon v. Railroad, 42 Mo. 79; Wasson v. McCook, 70 Mo.App. 397; Beauchamp v. Higgins, 20 Mo.App. 514.
Theodore Bruere and Norton, Avery & Young for respondent.
This is a suit for damages accrued to plaintiff as a result of an alleged assault and battery made upon him by defendants. Plaintiff recovered and defendants appeal.
The evidence tended to prove that plaintiff was assaulted by defendant Henry Ostmann, Sr., and his son, William Ostmann, in a public road, without just provocation. As a result, plaintiff received a severe beating at the hands of both defendants. The elder Ostmann used his fists and the younger Ostmann a club in inflicting the punishment. It seems a controversy arose first between plaintiff and Henry Ostmann, whereupon Henry Ostmann felled plaintiff to the ground and got upon him. While plaintiff and Henry Ostmann were in this posture, William Ostmann hit plaintiff one or more blows with a club. The jury awarded plaintiff five hundred dollars actual damages and five hundred dollars punitive damages against both defendants.
It is not entirely clear, however, whether this verdict was given on the theory that defendants were joint tortfeasors or on the theory of an independent liability against each for his wrongful conduct in the premises. The instructions given by the court at the instance of plaintiff in no just sense required the jury to find that defendants acted in concert, but, on the contrary, confused the issue with respect to this matter. By instruction number 3 for plaintiff, the court permitted a recovery against defendant Henry Ostmann alone even though he acted independently and without concert with his co-defendant William Ostmann. The instruction referred to substantially directed the jury that if it found Henry Ostmann assaulted and beat plaintiff without cause therefor, "then the jury will find a verdict against the defendant, Henry, irrespective of whether he did or did not act in concert with defendant, William, and assess such damages," etc.
Instruction number 4 for plaintiff substantially directed the jury that a verdict might be returned for plaintiff against defendant, William Ostmann, if it appeared he assaulted and beat plaintiff without just cause, even though the jury believed he did or did not act in concert with defendant, Henry Ostmann. We believe those instructions were erroneous in the form given, for they omitted to inform the jury that in no sense could a joint verdict be given against both defendants unless there was concert of action between them. The theory of these instructions is that each defendant is liable to respond individually to plaintiff for his wrongful conduct in the premises notwithstanding there may have been no co-operation between the Ostmanns and no concert of action on their part. No doubt the doctrine is sound enough, if perchance the finding was against one only, but to authorize a joint recovery as was had here, the jury must find as a fact that there was concert of action between the defendants. For intentional torts committed independently by different tortfeasors impose no joint liability even though their combined influence may result in an injury to the plaintiff. [Barton v. Barton, 119 Mo.App. 507, 531, 94 S.W. 574; Kinkead on Torts, secs. 44, 45, 46.] The essential fact to joint liability in cases of willful tort is that there must be co-operation between the tortfeasors. In other words, unless there is concert of action between those who are charged jointly with an unlawful assault, there can be no joint liability to respond in damages for the trespass. In this respect the theory of liability is to be distinguished from that which obtains with respect to joint tortfeasors in the law of negligence. [Kinkead on Torts, secs. 40 to 46, inclusive; Barton v. Barton, 119 Mo.App. 507, 531, 94 S.W. 574; 1 Cooley on Torts (3 Ed.), 223 to 232.]
For the reasons given, instructions permitting a joint recovery of damages against several defendants for a wrongful assault without requiring a finding to the effect that defendants acted in concert and co-operated with each other in inflicting the injuries upon plaintiff have heretofore been condemned by this court. See Thomas v. Werremeyer, 34 Mo.App. 665. But it is said by plaintiff that other instructions given by the court sufficiently apprised the jury that no joint recovery could be had unless it was found as a fact that defendants acted in concert. We are not so persuaded. Instead of elucidating the matter, plaintiff's instruction number 5 confused it highly. That instruction purports to enlighten the jury on the several elements of damages to be considered provided the issues were found for plaintiff. Among other things, it directed that the humiliation and disgrace caused plaintiff might be considered, etc. It said such humiliation and disgrace were competent matters to be considered by...
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