Bond v. Williams

Decision Date05 July 1919
Docket NumberNo. 19758.,19758.
Citation214 S.W. 202,279 Mo. 215
PartiesBOND v. WILLIAMS et al.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; Thomas L. Anderson, Judge.

Action by Sterling P. Bond against Luther H. Williams and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Lee Meriwether and S. P. Bond, both of St. Louis, for appellant.

Fauntleroy, Cullen & Hay, of St. Louis, and B. H. Boyer, of Farmington, for respondents.

WHITE, C.

Plaintiff brought this suit in the circuit court of the city of St. Louis, claiming damages for assault and battery. The petition alleged that on the 26th day of March, 1914, in the city of Farmington, the defendants unlawfully assaulted, beat, and bruised the plaintiff, injuring him in a manner described. It was further alleged that the assault and battery were in pursuance of a conspiracy. Judgment was prayed for actual damages in the sum of $5,000 and punitive damages in the sum of $10,000. The defendants filed a general denial. On trial of the case there was a verdict and judgment for the defendants, from which the plaintiff appealed.

The circumstances out of which the alleged cause of action arose are as follows: On March 26, 1914, the plaintiff, who is an attorney, was engaged at Farmington representing the defendant in the case of the State v. John O'Brien. Two of these defendants, Marbury and Luther Williams, were witnesses for the state in that trial. Defendant George K. Williams was brother of Luther. In his argument to the jury on behalf of his client, which took place in the evening, the plaintiff violently abused Williams and Marbury in the presence of a number of people, characterizing them as liars and perjurers, All three of the defendants were in the courthouse at the time, sitting in different parts of the house. After the argument was over and the case submitted to the jury the plaintiff and his associate counsel walked out of the courthouse and went across the street to the hotel. As they approached the hotel the defendant Marbury accosted the plaintiff and demanded that he apologize for what he had said in the course of his speech. It appears that Marbury attempted to strike Bond, but was held by a friend from behind, so that his purpose in that respect was frustrated. About that time defendant Luther Williams appeared and struck the plaintiff, knocking him down. Defendants offered some testimony to the effect that when Marbury accosted the plaintiff he made a motion as if to draw a weapon, and then Luther Williams struck. There is also some evidence that Mr. Bass, Mr. Bond's associate, made a like demonstration before Williams struck.

Each of the defendants testified that he was aroused to extreme anger by the language of the plaintiff, but that there was no concert of action and no conversation between them after the plaintiff made his speech until the encounter took place. The case was submitted to the jury on instructions offered by the plaintiff to the effect, if they should find that the defendants, or either of them, acting alone or in concert with the same purpose, assaulted and beat the plaintiff without justification or excuse, they should find for the plaintiff.

I. The principal error complained of was the admission of evidence offered by the defendants showing the abusive language used by the plaintiff while addressing the jury. This was testified to by each of the defendants and other witnesses. The defendants testified that they were very much outraged by the language used, and that the excitement and indignation remained with them up to the time of the assault.

In an action for damages caused by assault and battery it is always permissible to show the circumstances under which the alleged assault was committed. Where punitive damages are asked, whether malice was present is an issue, and it is permissible to show the circumstances of provocation in mitigation of such damages, though such evidence is inadmissible in mitigation of actual damages. Joice v. Branson, 73 Mo. 28; Gray v. McDonald, 104 Mo. 303, loc. cit. 314, 16 S. W. 398. In order, however, that evidence of proviacation, such as abusive language, may be introduced for the purpose of mitigation, the provocation must have occurred at the time of the assault, or so recently as to warrant an inference that the defendant was still laboring under the excitement caused by it.

Appellant, while admitting the principle of law stated, argues that a sufficient time had elapsed after the provocation and before the assault to show that the attack was made in cool blood and with malice. The authorities are not altogether in agreement as to what would be sufficient time for the passions aroused by such a provocation to subside so that it would be presumed the assault was deliberate; that is, they do not set definite limits for a period designated as a "cooling time." State v. Wieners, 66 Mo. loc. cit. 27. In general it is said that the length of time necessary to remove the excuse of provocation depends upon the circumstances of each case. As said by this court in the case of State v. Grugin, 147 Mo. loc. cit. 51, 47 S. W. 1061, 42 L. R. A. 774, 71 Am. St. Rep. 553:

"No precise time, therefore, in hours or minutes, can be laid clown by the court, as a rule of law, within which the passions must be held to have subsided and reason to have resumed its control, without setting at defiance the laws of man's nature, and ignoring the very principle on which provocation and passion are allowed to be shown, at all, in mitigation of the offense."

This passage is quoted by the court from the case of Maher v. People, 10 Mich. 212, 81 Am. Dec. 781.

The appellant cites two Missouri cases in support of its position. Case of Coxe et al. v. Whitney, 9 Mo. 531, where plaintiff, editor of a newspaper, published an article reflecting on defendant's wife. Two days later defendant went to the room of plaintiff and made the assault. The court held that evidence of the provocation was inadmissible in mitigation of damages. The court said (9 Mo. 535):

"The evidence of provocation which is allowed to mitigate the damages must be so recent `as to induce a fair presumption that the violence was done during the continuance of the feelings and the passions excited by it.'"

The court then makes this statement (9 Mo. loc. cit. 536):

"But ira furor brevis est: What is done 24 or 48 hours after the provocation received is not the result of that passion, but is the deliberate infliction of vengeance, for an injury, real or supposed."

The other case is Collins v. Todd, 17 Mo. 537. In that case the plaintiff used insulting language to the defendant's niece, and this was communicated to the defendant on Sunday. The assault occurred on the succeeding Monday or Tuesday, and the court held evidence of the provocation was inadmissible because sufficient time had elapsed to allow the presumption that the person had cooled. No other case is cited in this state by appellant holding that a shorter time between the provocation and the assault was sufficient to exclude the evidence, nor do cases in general from other states generally support the appellant's position. In the case of Dupee v. Lentine, 147 Mass. 580, 18 N. E. 465, the provocation occurred some time before the assault, but the defendant learned of it just ten minutes before the assault, and the evidence was held inadmissible, but that case is contrary to the weight of authority. The cases of Thrall v. Knapp, 17 Iowa, 468, is cited. In that case the provocation occurred a week before the assault, but information in relation to it was conveyed to the defendant three hours before, and the evidence of provocation was held improperly admitted. It appears in that case that the court gave attention to the time at which the provocation occurred rather than the time at which the information reached the defendant. It was said that—

"No circumstances or provocation the week before, or the day before the assault, or at any time other than the identical day of the assault, * * * could be offered in evidence."

The case of Prentiss v. Shaw, 56 Me. 427, 96 Am. Dec. 475, the provocation was two hours before the assault, and the evidence was held inadmissible.

The case of Ward v. White, 86 Va. 212, 9 S. E. 1021, 19 Am. St. Rep. 883, is where an abusive article appeared in a newspaper concerning the defendant, and the next day the defendant committed the assault for which he was sued. The newspaper article was held properly admitted.

In Biggs v. State, 29 Ga. 723, 76 Am. Dec. 630, the plaintiff offered an indignity to the defendant's wife one evening, and on the following morning the assault occurred. Evidence of the affront was held admissible.

The case of Dolan v. Fagan (N. Y.) 63 Barb. 73, the plaintiff insulted the defendant with opprobrious language on a number of occasions before the assault took place. The trial court ruled that the defendant could show anything that took place on the day of the assault or the day before, but not what took place several days before. The case was reversed on the ground that the ruling excluding what took place several days before was erroneous.

In Genung v. Baldwin, 77 App. Div. 584, 79 N. Y. Supp. 569, it was held that, where the defendant on the same day and prior to the assault read some article in defendant's newspaper severely criticizing him, it might be shown in evidence in an action for assault and battery. Similar ruling in Marriott v. Williams, 152 Cal. 705, 93 Pac. 875, 125 Am. St. Rep. 87.

In the case of Leachman v. Cohen (Tex. Civ. App.) 91 S. W. 809, a livery stable keeper hired a horse to a young man, and while the horse was out word came to him that the young man was abusing the horse and driving recklessly. When the young man came in, it appears several hours later, the livery stable keeper assaulted him, was sued for damages afterwards, and it was held that the abuse of the horse...

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