Clark v. Fairley

• Decision Date: 01 February 1887
• Citation: 24 Mo.App. 429
• Parties: J. D. CLARK, JR., Respondent, v. J. P. FAIRLEY, Appellant.
• Court: Missouri Court of Appeals

24 Mo.App. 429

J. D. CLARK, JR., Respondent,

v.J. P. FAIRLEY, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 1, 1887.

APPEAL from the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.

Reversed and remanded.

FRANK A. HOBEIN and E. A. B. GARESCHE, for the appellant.

A. A. PAXTON, for the respondent.

ROMBAUER, J., delivered the opinion of the court.

This is an action to recover damages for injuries to the plaintiff's person. The petition is as follows:

“The plaintiff states that, on the thirtieth day of September, 1885, whilst said Joseph D. Clark, Jr., an infant under the age of twenty-one years, and of the age of thirteen years, and son of the plaintiff, was passing along on the sidewalk of Franklin avenue, between Eighth, and Ninth streets, in the city of St. Louis, state of Missouri, in a peaceable and lawful manner, the defendant, without any just provocation or excuse whatever, assaulted said Joseph D. Clark, Jr., and by means of said assault said Clark was forced and driven against the hind legs of a certain mule, standing close to the curb of said sidewalk, which said mule kicked and wounded him, said Clark, on the back of his head, and in his shoulder and arm, so that he, said Clark, was greatly and permanently injured, maimed, and disfigured. That by reason of said wrongful act of the defendant said Joseph D. Clark, Jr., suffered great pain of body and mind, and has been injured and maimed for life, and has suffered damages in the sum of ten thousand dollars. Wherefore the plaintiff prays judgment, etc.”

The answer was a general denial.

There was a trial by jury and a verdict for the plaintiff in the sum of five hundred dollars.

The defendant, upon the trial, objected to the introduction of any evidence, on the ground that the petition failed to state any cause of action, and renewed his objection by motion in arrest. These objections were overruled by the court, and its ruling in that behalf is assigned for error.

The petition fails to state that the assault was either unlawful or excessive, but as it does state that it was made without any just provocation or excuse whatever, we are inclined to hold that its averments include, by reasonable intendment, the essential averment of unlawfulness. This would bring the petition within the rule that, matters insufficiently averred are aided by verdict, and not within the rule that, where the petition omits averments essential to the plaintiff's recovery, the judgment must be arrested.

In view of a probable re-trial of the cause however, we will suggest, that the plaintiff have leave to amend his petition, if he so elects, as the facts, on which he relies for a recovery, and which his testimony tends to show, constitute a battery, which includes an assault, but is not included in the legal signification of the latter term. The petition should state the facts relied on for a recovery.

The defendant further assigns for error the refusal of instructions asked by him, and erroneous instructions given by the court at the plaintiff's instance, and on its motion. The only witness, who, on the part of the plaintiff, testified as to the cause of the accident, was a companion of his, a boy about fourteen years old, who stated the occurrence substantially as follows: The witness and the plaintiff were walking in front of the defendant's store, when the plaintiff took some coffee beans from an open sack standing in front of the store, and put them in his mouth; the defendant thereupon rushed at the plaintiff, who was walking in the middle of the sidewalk, and slapped him with his open hand; that a mule was standing in the street, a distance of eight feet from the gutter, and the plaintiff fell under its legs, and was severely injured...