Campbell v. Crutcher

• Decision Date: 05 June 1920
• Docket Number: No. 2568.<SMALL><SUP>*</SUP></SMALL>,2568.<SMALL><SUP>*</SUP></SMALL&gt
• Parties: CAMPBELL v. CRUTCHER.
• Court: Missouri Court of Appeals

224 S.W. 115

CAMPBELL v. CRUTCHER.

No. 2568.^*

Springfield Court of Appeals. Missouri.

June 5, 1920.

Appeal from Circuit Court, Christian County; Fred Stewart, Judge.

Action by May Campbell against L. F. Crutcher. Judgment for plaintiff after remittitur of part of the damages awarded by the verdict to avoid the granting of a new trial, and defendant appeals. Affirmed.

G. Purd Hays, of Ozark, and Lincoln & Lincoln, of Springfield, for appellant.

Warren L. White and Sam M. Wear, both of Springfield, and Moore, Barrett & Moore, of Ozark, for respondent.

BRADLEY, J.

This is a suit for damages based upon an alleged assault. Plaintiff alleges that defendant wrongfully, forcibly, and without right entered her home and struck her with his fist, choked her, and threatened to strike her with a hammer; and that as the result of being so assaulted she was seriously bruised about her head and body, and suffered great pain of body and mind, and suffered a nervous breakdown, and was confined to her bed for a long period of time; that by reason of said assault she was actually damaged in the sum of $2,500; that the assault was malicious, and with the deliberate intention of injuring plaintiff, and she asked for $2,500 as punitive damages. Defendant answered by a general denial. The cause went on change of venue from Greene to Christian county, and was there tried before the court and a jury, and plaintiff obtained a verdict assessing her actual damages at $1,500, and punitive damages at $1,000. On the hearing of the motion for new trial the court required plaintiff to remit $1,000 of the actual damages, and $500 of the punitive damages, and then overruled the motion, and defendant appealed.

The defendant assigns as error: (1) The overruling of his demurrer; (2) permitting plaintiff to amend her petition at the close of her case in chief; (3) conditioning the ruling on motion for new trial on the remittitur; (4) that error was committed in the admission of evidence.

Plaintiff and her husband at the time of the alleged assault lived in the city of Springfield in a tenant house belonging to defendant. They owed defendant for three months' rent, amounting to $27. The furniture in the house belonged to plaintiff's married daughter. On Saturday night before the alleged assault on Sunday morning plaintiff and her husband had loaded a part of this furniture in a car preparatory to shipping to the daughter. One Kincade, who lived near, observed late Saturday night that plaintiff and her husband were loading the furniture in a car set near by, and on Sunday morning he telephoned defendant, and advised him that the Campbells were moving. About 8:30 or 9 o'clock Sunday morning defendant and his son drove over to plaintiff's place, and she gives this version of what occurred:

"I am fifty-five years old. Live at 232 W. Chase St., Springfield, Mo. My husband is William Campbell. We lived at 209 W. Chase street, last May, in Mr. Crutcher's house, paying nine dollars per month rent. The assault was on Sunday, May 18. At the time we owed him about two months rent. About half past 8 or 9 o'clock on that day I was in the kitchen cooking breakfast, when Pearl and May Collins came in the kitchen and told me Mr. Crutcher was there. I went into the dining room, and was within two steps of the west door of the dining room leading out on the west porch, when Mr. Crutcher came in through that door and locked it with a key. He had a hammer in his hand, and he hit me and knocked me against the wall at the right side of the door. I said, `Why, Mr. Crutcher, what is the matter?' He said, `You damned bitch, don't you say a word. You thought you would get away without paying your rent.' He jammed me against the wall. Then my husband kicked the door open. May Collins was there with me. She saw him strike me. I was nearly scared to death by what he said and did. Pearl was at the kitchen door. My husband said, `Mr. Crutcher, you have said and done enough. Get out.' He came right in between us, and Mr. Crutcher went out the other way."

Plaintiff further testified that defendant hurt her breast and back when he jammed her against the wall; that she suffered a good deal; that she was sore, and could not eat for several days; that she was not able to do any work until in September after the alleged assault in May. May Collins, a girl 15 years old, testified that she was in plaintiff's yard when defendant came; that he came shaking his hammer at Mr. Campbell, went up on the porch, called Mr. Campbell a son of a bitch; that she, the witness, ran into the kitchen and told plaintiff, and that plaintiff went into another room; that when plaintiff got in this other room defendant was there, and locked the door, and hit plaintiff with his hand and jammed her against the wall. "He called her a damned old bitch after he hit her. Then Mr. Campbell pushed the door open and went in." Mrs. Martin, plaintiff's daughter, testified that she came to Springfield on Tuesday following the trouble; that her mother's breast was blue from a bruise, and that she washed and dressed it; that there were "finger claws" on her mother's shoulder; that plaintiff was in bed for two weeks, and after that was up and down. Minnie Collins, mother of May, testified that she lived next to the Campbells ; that defendant called Mr. Campbell a son of a bitch. "In a little bit he ran in and either locked the door, or it was just a little thumb latch, Mr. Campbell kicked the door open. I didn't hear any more of the fuss, for I was away from the door. They were not in there very long before they all came out, still disputing. Mrs. Campbell came out crying." Several witnesses testified as to plaintiff's physical condition for a few days after the alleged assault, and all the evidence is to the effect that she was in a somewhat upset nervous condition, complained, and suffered considerably.

Defendant denied touching plaintiff, and practically all else that plaintiff testified to. It was also shown on the cross-examination of May Collins, by her former deposition taken in the case, that she had in the deposition given a somewhat different version than she gave at the trial. Defendant also showed that plaintiff on Monday after the alleged assault received a telegram notifying her of the death of her sister, and by the physician who was called to see plaintiff a few days after the alleged assault that the shock, from the information in the telegram, could have caused plaintiff's nervous condition. The physician saw no bruises, and heard of none, and heard of no assault. Plaintiff admitted receiving the telegram, but said that the information in the telegram was not unexpected. Defendant's son did not see any of the alleged trouble, as he was in his car or at the car. He testified as to some facts occurring after the alleged assault, but his evidence does not disclose any facts of Material consequence.

The mere statement of the facts makes it apparent that there is no ground upon which defendant can urge that his demurrer to the evidence should have been sustained. The jury was the judge of the credibility of the witnesses and of the weight of the evidence, and their conclusion that plaintiff was entitled to recover is abundantly supported. There is no merit in defendant's contention that the court should have sustained his demurrer, and this assignment is ruled against him.

At the close of plaintiff's case in chief defendant demurred to the "petition and the evidence because the petition doesn't state facts sufficient to constitute a cause of action, in that it doesn't allege or ask any actual damages, and because the evidence fails to prove any allegations in said petition." Thereupon plaintiff asked leave to amend by inserting at the proper place these words: "Whereby the plaintiff was damaged in the sum of twenty five hundred dollars as actual damage." The court permitted the amendment and overruled the demurrer. Under section 1848, R. S. 1909, there is ample authority for the court's action in permitting the amendment. This amendment did not in any way change the cause of action stated, and required no different proof. The character of the evidence remained the same. The cases are numerous upholding this amendment, and defendant cites no authority supporting his contention that it was error to permit the amendment. We rule against defendant on this assignment.

The third assignment, that the court erred in conditioning the ruling on the motion for new trial on the remittitur, is of more serious...