20 S.W. 209 (Mo. 1892), Beck by next Friend v. Dowell

• Date: 20 September 1892
• Citation: 111 Mo. 506,20 S.W. 209
• Docket Number: .
• Parties: Beck by next Friend v. Dowell, Executor, Appellant
• Court: Missouri Supreme Court

Page 209

20 S.W. 209 (Mo. 1892)

111 Mo. 506

Beck by next Friend

v.

Dowell, Executor, Appellant

Supreme Court of Missouri, Second Division

September 20, 1892

Certified from St. Louis Court of Appeals.

Affirmed.

Blair & Marchand and M. McKeag for appellant.

(1) The court erred in sustaining the plaintiff's motion to strike out part of defendant's answer, if the matter stricken out tendered any defense, in whole or in part, to the action or any part of the action. Justice v. Lancaster, 20 Mo.App. 559; Kerr v. Simmons, 82 Mo. 269. (2) The matters pleaded in defendant's answer were largely mitigating circumstances he had, as a defense, to the charges of malice made in the plaintiff's petition. They were also justifications for the shooting, and were necessary to be pleaded in order to avail himself of them at the trial. Buckley v. Knapp, 48 Mo. 152; Deenhart v. Schmidt, 7 Mo.App. 117; White v. Maxey, 64 Mo. 552. (3) This court will review the action of the lower court on the motion to strike out, without any exceptions appearing on the record. It is a statutory pleading (Revised Statutes, 1879, sec. 3529), and in effect is a demurrer and treated as such. Paxon v. Talmage, 87 Mo. 14; Austin v. Loring, 63 Mo. 19. Consequently the action of the court in sustaining the motion is a matter of error, as distinguished from a matter of exceptions. State v. Finn, 19 Mo.App. 560, and cases cited. (4) A great deal of the testimony offered by plaintiffs and objected to by defendant was incompetent and referred to immaterial and unimportant particulars which could only have been offered to, and likely did, draw the minds of the jury from the point in issue; the objections of defendant ought to have been sustained. Ritter v. Bank, 87 Mo. 571. (5) The admitting of evidence as to the wealth of defendant was improper. There was nothing in the evidence to show that the acts of Harris were either wanton or malicious and done intentionally without just cause. Franz v. Hilterbrandt, 45 Mo. 121; Engle v. Jones, 51 Mo. 316; Brown v. Cape Girardeau, 89 Mo. 152. (6) Irrespective of the errors pointed out as apparent upon the record, the appellant submits that the evidence does not support the verdict and judgment, and the judgment ought to be reversed.

Clay & Ray, F. L. Schofield and J. C. Anderson for respondent.

(1) The court committed no error in admitting evidence to show the financial condition of plaintiff, her father and mother and of defendant. Clements v. Maloney, 55 Mo. 352; Daily v. Huston, 58 Mo. 361; Kennedy v. Holaday, 25 Mo.App. 511; Polston v. See, 54 Mo. 294; Buckley v. Knapp, 48 Mo. 162; Renfro v. Prior, 22 Mo.App. 409; Heneky v. Smith, 45 Am. Rep. 143. (2) The evidence shows that the act of defendant which resulted in the injury of plaintiff was wilful; that he used a deadly weapon. Without more the law implies malice, and in such cases the jury are authorized to inflict exemplary damages. Myers v. Pohlman, 12 Mo.App. 567; Howard v. Lillard, 17 Mo.App. 228; Green v. Craig, 47 Mo. 90; Buckley v. Knapp, 48 Mo. 152; Corwin v. Walton, 18 Mo. 71; McGarvy v. Railroad, 36 Mo.App. 353; Keneday v. Railroad, 36 Mo. 351; Goetz v. Ambs, 27 Mo. 29.

OPINION

[111 Mo. 508] Gantt, P. J.

This cause was appealed from the circuit court of Lewis county to the St. Louis court of appeals. That court in an opinion by Judge Rombauer affirmed the judgment of the circuit court; but Judge Biggs being of the opinion that the conclusion reached by the majority, that evidence of the financial condition of the plaintiff in an action when the evidence will justify the jury in awarding exemplary or punitive damages was admissible, is in conflict with and opposed to two decisions of this court, to-wit: Overholt v. Vieths, 93 Mo. 422, 6 S.W. 74, and Stephens v. Railroad, 96 Mo. 207, 9 S.W. 589, the cause was, under the constitution, certified to this court.

I. When the cause was heard in the court of appeals, the instructions were not in the record. No efforts were made to supply them in that court, and that court rightly proceeded on the assumption that the trial court had correctly declared the law to the jury. Since the case has reached this court a certified copy of the instructions has been filed with the record. The propriety of considering these declarations of law by this court, under these circumstances, suggests itself at once.

While this court obtains jurisdiction to "rehear and determine a cause so certified to us by either of the appellate courts, as in cases of jurisdiction obtained by ordinary appellate process," there is nothing in the [111 Mo. 509] constitution that justifies parties in assuming that we will or can take cognizance of matters not in the record.

When a record is deficient in any material respect, the practice is uniform that the party desiring the absent record should suggest the diminution and apply for a writ of certiorari, or file stipulations in this court, supplying the record. In this case, nothing of the kind has been done, but from the brief of the appellant, we take it, he assumes that these instructions are properly before us.

There is no hardship in requiring parties to govern themselves by the rules of procedure established for the...