Booher v. Trainer

• Decision Date: 02 June 1913
• Citation: 157 S.W. 848
• Parties: BOOHER v. TRAINER.
• Court: Missouri Court of Appeals

157 S.W. 848

BOOHER v. TRAINER.

Kansas City Court of Appeals. Missouri.

June 2, 1913.

Rehearing Denied June 16, 1913.

1. EVIDENCE (§§ 77, 589) — WEIGHT — TESTIMONY OF PARTY — FAILURE TO CALL WITNESS.

The failure of a party to call a friendly witness having personal knowledge of the facts in issue raises an inference that the testimony of the witness would be detrimental to the party, but the jury indulging that inference may still believe the testimony of the party.

2. APPEAL AND ERROR (§ 994) — VERDICT — CONCLUSIVENESS.

The jury are the judges of the credibility of the witnesses and the weight of their testimony, and a verdict sustained by substantial evidence will not be disturbed on appeal.

3. RAPE (§ 66) — CIVIL LIABILITY — ACTIONS — EVIDENCE.

In an action for assault with intent to rape, evidence held to corroborate the testimony of plaintiff, so that the case was for the jury.

4. TRIAL (§ 244) — INSTRUCTIONS — SINGLING OUT EVIDENTIARY FACTS.

An instruction in an action for assault with intent to rape alleged to have been committed while the parties were riding in a buggy, that, if while plaintiff was riding in a buggy with defendant he took hold of her and against her will laid his hands on her in a lustful way without her consent and against her will, the verdict must be for plaintiff, is not objectionable as singling out and emphasizing isolated evidentiary facts.

5. RAPE (§ 65) — CIVIL LIABILITY — ASSAULT WITH INTENT TO RAPE.

The gravamen of an action for assault with intent to rape is the assault, and plaintiff to recover need not prove the intent, which only goes to the question of damages, and where defendant, against plaintiff's will and consent, subjected her to violent and lustful physical contact, he was guilty of assault and battery for which she may recover damages.

6. ASSAULT AND BATTERY (§ 3) — WHAT CONSTITUTES — INTENT.

Any application of unlawful force to another constitutes an assault and battery, and the intent is immaterial, provided the act is not justified or excusable, or with the assent of the person on whom the act is committed, since the only intent required is the intent to do the unlawful act.

7. RAPE (§ 67) — CIVIL LIABILITY — ASSAULT WITH INTENT TO RAPE — DAMAGES.

A verdict of $1,000 compensatory damages and $1,000 punitive damages for assault on a female 20 years old with intent to rape is not excessive.

Appeal from Circuit Court, Mercer County; Geo. W. Wanamaker, Judge.

Action by Mattie Booher against Russell Trainer. From a judgment for plaintiff, defendant appeals. Affirmed.

Platt Hubbell and George Hubbell, both of Trenton, for appellant. Ben F. Kesterson, L. B. Woods, and Orton & Orton, all of Princeton, for respondent.

JOHNSON, J.

Defendant appealed from a judgment for $1,000 compensatory and $1,000 punitive damages recovered by plaintiff in the circuit court in a civil action for an assault with intent to commit rape, alleged to have been committed by defendant on the night of July 4, 1912.

The parties lived on adjoining farms in Mercer county 10 or 12 miles southwest of Princeton, the county seat, and each was 20 years of age. Defendant had married an intimate friend of plaintiff, but his wife had died about a year before and he was living with his father-in-law. Plaintiff had been living with her father and mother, with the exception of brief periods spent in attending a business school in Chillicothe and in working in a hotel in Memphis, Mo. She had returned home from the latter place about two weeks before the event in controversy, and, in company with an elder sister and younger brother, drove to Princeton in a buggy to attend a Fourth of July celebration. Defendant also attended, and during the festivities met plaintiff and offered to take her home in his buggy. There is a sharp dispute in the evidence over the issue of which one sought the companionship of the other. Plaintiff states that at first she refused defendant's invitation, but changed her mind and accepted after he spoke of his loneliness and of the close friendship that had existed between her and his departed wife. On the other hand, defendant says that plaintiff first sent a message to him by her brother to the effect that she wished to see him and when they met asked him to take her home. This issue, in common with other issues of fact, was decided by the jury adversely to defendant, and for present purposes we shall regard it as conclusively settled and shall accept as proved the statement of plaintiff that she yielded somewhat reluctantly to the importunities of defendant that he be allowed to take her home.

We do not agree with the argument that the failure of plaintiff to call her brother as a witness to contradict defendant would warrant us in rejecting her testimony on this issue as unworthy of belief. We recognize the rule "that the failure of a party to call a friendly witness having personal knowledge of the facts in issue raises a presumption or inference that the witness' testimony would have been detrimental to him." 22 Am. & Eng. Ency. of Law (2d Ed.) 1261. But the jury well might have indulged that inference and still believed that plaintiff told the truth about these preliminary incidents. The questions of the credibility of witnesses and of the weight to be given their testimony are jury questions, and whenever we find, as we do here, that their solution of such issues has substantial evidence behind it, we do not interfere.

Plaintiff states that she and defendant started home at half past 11 o'clock that evening, and that as soon as they were well out of town he declared his purpose to have carnal knowledge of her at all hazards and regardless of her desires. A physical struggle then ensued between them that continued with intermissions all the way home. Plaintiff successfully resisted these onslaughts, but defendant would not desist, and, despite her pleadings and resistance, sought in every way and used his strength to the utmost in persistent efforts to overcome her. We shall not recite the disgusting details of the evidence. Suffice it to say that the testimony of plaintiff tends to show that against her will or consent defendant used physical violence in an effort to force her to submit to him.

Defendant admits that he manifested a purpose to have sexual intercourse, but only in response to her amatory...