Carnes v. Thompson

• Citation: 48 S.W.2d 903
• Decision Date: 02 April 1932
• Docket Number: No. 29697.,29697.
• Parties: CARNES v. THOMPSON.
• Court: Missouri Supreme Court

48 S.W.2d 903

CARNES v. THOMPSON.

No. 29697.

Supreme Court of Missouri, Division No. 1.

April 2, 1932.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Action by Hallie Carnes against Milton Thompson. Judgment for defendant, and, from an order granting plaintiff a new trial, defendant appeals.

Order affirmed, and cause remanded.

Sebree, Jost & Sebree and Henry L. Jost, all of Kansas City, for appellant.

Harry G. Kyle, of Kansas City, and T. N. Haynes, of Harrisonville, for respondent.

HYDE, C.

This is an action for $10,000 actual and $20,000 punitive damages for assault. Defendant owned a number of farms in Jackson, Cass, and other counties, in Missouri. In the spring of 1924, defendant employed plaintiff's husband to work on his 400-acre farm in Cass county. A public road ran north and south through this farm, and there were two residences on it. There was a large house located on the east side of the road, and plaintiff's husband and his family were permitted to live in it, during the time plaintiff's husband was working for defendant. There was also a smaller house, on the west side of the road, unoccupied. Defendant had not employed plaintiff's husband for any definite time, but was paying him by the month. On the first of August defendant ceased to employ him, and thereafter told him to vacate the house. They, however, continued to occupy the house.

On November 16th, defendant instructed another man, Wilson, to move on to the farm. Wilson arrived on that day and undertook to move into the big house, in which plaintiff and her husband were living, but was not allowed to do so. Wilson went away and called defendant, who came back with him to the farm. Defendant's foreman and some other men were with him. They went to the little house on the west side of the road and defendant attempted to get a window open with a pair of pliers. Plaintiff's husband had the key to the little house and sent it over by his daughter, a girl 11 years old. Defendant told her to tell her father to come over, and plaintiff and her husband did go across the road to the little house. The plaintiff's evidence, being her own testimony and that of her husband and two daughters, was that defendant came toward them almost in a run, as they approached on the concrete sidewalk leading from the road to the little house; that defendant demanded, in an angry manner, of plaintiff's husband why he did not let Wilson move in; that he came up to them and struck at plaintiff's husband with the pliers; that the pliers brushed the coat sleeve of her husband and were brought down forceably against her hand, and that she grabbed defendant's coat collar and held him so that he could not strike her husband, which he attempted to do two or three times. Plaintiff said that she released defendant at his request, and that he went back to the house, took off his hat and glasses, handed them and the pliers to the man, who was with him, and started for her husband again. As he came past plaintiff she caught his coat tail, held him, and called to her husband to "beat it." Plaintiff said that defendant, struggling to get loose, jerked and shook her; that her husband went back across the road and told her to let go of defendant; and that she did so, and went back across the road to the big house. Plaintiff's evidence, as to her injuries, was that her hand was bruised, swollen, and bleeding; that her wrist was strained and her shoulder and back hurt, and that she was rendered very nervous and had never fully recovered. The defendant's version, as related by him and the men who were with him, was that the first part of the encounter did not occur, and that, when plaintiff and her husband approached, he did not have the pliers in his hand. He said he took off his glasses, but not his hat, and went toward them, asking plaintiff's husband why he did not let Wilson move in; that plaintiff's husband backed away with his hand in his pocket; that he thought he was going to pull a gun; that he did not notice plaintiff until she took hold of his coat tail, as he came along the walk; that he asked her to let loose of his coat; that she did so and went back across the road to where her husband had gone; and that he neither struck at nor hit either of them.

The jury returned the following verdict: "We, the jury, find the issues for plaintiff for actual damages, nothing; for punitive damages, $100."

The court entered judgment for defendant, concluding as follows: "Therefore, it is ordered and adjudged by the court that plaintiff take nothing by her action in his behalf, and that defendant go hence without day and have and recover of and from said plaintiff his costs of the cause and have hereof execution."

Plaintiff filed timely motions for new trial and in arrest of judgment, both of which were sustained during the following term. The order of the court, sustaining plaintiff's motion for new trial, granted plaintiff a new trial "on account of insufficient verdict." From this order defendant has appealed. He has since died, and this cause has been revived. We have jurisdiction, since judgment went for defendant, because the amount claimed in plaintiff's petition is in excess of $7,500. This appeal determines plaintiff's right to have a new trial for the whole amount claimed. Manche v. St. Louis Basket & Box Co. (Mo. Sup.) 262 S. W. 1021; Burke v. Pappas, 316 Mo. 1235, 293 S. W. 142.

Defendant's contention is that the court erred in granting plaintiff a new trial, because: (1) Defendant's demurrer to the evidence should have been sustained; (2) that the verdict was not void, but that a judgment rendered thereon for plaintiff would be legally enforceable against defendant; (3) that plaintiff waived all objections to the form of the verdict by failing to request the court, at the time the verdict was received and before the discharge of the jury, to have it corrected by the jury by allowance of nominal actual damages; (4) that the court was not justified in granting a new trial on account of "insufficient verdict" because no such ground was specified in plaintiff's motion for new trial.

Plaintiff's evidence, unquestionably, made a case for the jury. Defendant says that the evidence does not show that he at any time intended injury and harm to the plaintiff, and that he was never close enough to plaintiff's husband to strike him. However, plaintiff's evidence was sufficient to justify a finding that defendant struck at plaintiff's husband, in anger, with the pliers, and that, when he dodged the blow, plaintiff received it. If one person intentionally strikes at, throws at, or shoots at another, and unintentionally strikes a third person, he is not excused, on the ground that it was a mere accident, but it is an assault and battery of the third person. Defendant's intention, in such a case, is to strike an unlawful blow, to injure some person by his act, and it is not essential that the injury be to the one intended. West v. Forrest, 22 Mo. 344; Murphy v. Wilson, 44 Mo. 313, 100 Am. Dec. 290; Morgan v. Mulhall, 214 Mo. 451, 114 S. W. 4; Talmadge v. Smith, 101 Mich. 370, 59 N. W. 656, 45 Am. St. Rep. 414; Davis v. Collins, 69 S. C. 460, 48 S. E. 469; Cooley on Torts, 164; 2 R. C. L. 530, § 7; 5 C. J. 624, § 9.

The verdict returned by the jury was defective. "Actual damages [either substantial or nominal] must be found as a predicate for the recovery of exemplary damages." Hoagland v. Forest Park Highlands Amusement Co., 170 Mo. 335, loc. cit. 343, 70 S. W. 878, 880, 94 Am. St. Rep. 740; see, also, Courtney v. Blackwell, 150 Mo. 245, 51 S. W. 668; Lampert v. Judge & Dolph Drug Co. 238 Mo. 409, 141 S. W. 1095, 37 L. R. A. (N. S.) 533, Ann. Cas. 1913A, 351; Keller v. Summers, 262 Mo. 324, 171 S. W. 336. Defendant says that plaintiff could have had the verdict corrected, before the jury was discharged, by making a request to the court to have the jury allow nominal actual damages. It has been held proper to suggest such a correction to the jury. Mills v. Taylor, 85 Mo. App. 111; Dawson v. Metropolitan Street Ry. Co., 157 Mo. App. 642, 138 S. W. 665; Roney v. Organ, 176 Mo. App. 234, 161 S. W. 868; Lindstrom v. K. C. Southern Ry. Co., 202 Mo. App. 399, 218 S. W. 936. Defendant further says that plaintiff has waived her right to a new trial by failing to make this request to the trial court. It has been held that such a verdict is error against plaintiff and not against defendant, and therefore defendant cannot complain of it. Courtney v. Blackwell, 150 Mo. 245, 51 S. W. 668; Adams v. St. Louis & San Francisco R. R. Co., 149 Mo. App. 278, 130 S. W. 48; Roney v. Organ, 176 Mo. App. 234, 161 S. W. 868. In those cases, however, judgment was entered on the verdict...