Butterfield v. Butterfield

• Citation: 187 S.W. 295
• Decision Date: 12 June 1916
• Docket Number: No. 12076.,12076.
• Parties: BUTTERFIELD v. BUTTERFIELD.
• Court: Court of Appeal of Missouri (US)

187 S.W. 295

BUTTERFIELD v. BUTTERFIELD.

No. 12076.

Kansas City Court of Appeals. Missouri.

June 12, 1916.

Rehearing Denied July 3, 1916.

Appeal from Circuit Court, Jackson County; Clyde Wilcox, Special Judge.

Action by Flora Belle Butterfield against Robert James Butterfield. From judgment for plaintiff, defendant appeals. Reversed.

L. E. Bates, of Excelsior Springs, and J. C. Grover, of Kansas City, for appellant. Prince & Harris and J. H. Hunter, all of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action is to recover damages resulting from an assault and battery alleged to have been committed upon her by defendant. She recovered judgment in the trial court.

It appears by the record that at the time of the assault and battery plaintiff was defendant's wife. Under the common law, the husband or wife was not liable in a civil action to the other for a personal tort. And our statutes, including the Married Woman's Act, has not changed the rule. In a recent opinion written by Judge Walker, the Supreme Court has fully discussed this question, and we refer thereto in support of our judgment herein. Rogers v. Rogers, 265 Mo. 200, 177 S. W. 382.

Plaintiff, after obtaining this judgment without a shadow of legal right, has sought to interpose various technical objections to being deprived of it. It appears that that part of the answer setting up the marriage was erroneously stricken out on plaintiff's motion, which left nothing but a general denial. Plaintiff insists that, since the defendant did not save that point in his motion for new trial, he waived it. This was such character of motion as amounted, to all intents and purposes, to a demurrer, and the court's action is saved without being embodied in a motion for new trial. State ex rel. v. Ellison (Sup.) 182 S. W. 998; Shohoney v. Railroad, 231 Mo. 131, 148, 132 S. W. 1059, Ann. Cas. 1912A, 1143.

But, aside from that, the proof was made during the trial and a peremptory instruction was asked by defendant and refused, and an exception to the ruling was duly preserved.

The evidence, that the parties were husband and wife at the time of the assault, consisted of a record of the circuit court of Clay county of a divorce proceeding, instituted by defendant against plaintiff in that county, wherein the petition alleged a marriage at a date prior to the assault, and the petition was adjudged to be confessed, and a decree was rendered. This was evidence tending to show they were husband...