Cody v. Gremmler
| Decision Date | 22 December 1906 |
| Citation | 99 S.W. 46,121 Mo.App. 359 |
| Parties | CODY, Respondent, v. GREMMLER, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. O'Neill Ryan Judge.
AFFIRMED.
Judgment affirmed.
Dodge & Mulvihill and Walter H. Saunders for appellant.
(1) Instructions as to exemplary damages must be based upon the evidence. McQuillin, secs. 1240-1242; Milligan v Railroad, 79 Mo.App. 396; Lemon v. Chandlor, 68 Mo. 359; McPherson v. Railroad, 97 Mo. 259; Rogers & Powers v. Warren, 75 Mo.App. 275; Baker v. Railroad, 52 Mo.App. 607. (2) If the court, however should find that the instruction complained be a correct rule of law, then we submit that the punitive damages are excessive and can be reached by a remittitur. Newcomb v. Railroad, 182 Mo. 687; 18 Ency. Pl. and Pr., 143, 144.
John S. Leahy for respondent.
(1) The prime object of instructions is to afford the jury a clear and plain view of the legal principles applicable to the case, by which they may be guided. Planton v. Dolb, 109 Mo. 64. (2) Instructions must be considered in connection with the evidence in the case. If there is no probability that the jury was misled, the judgment will not be reversed, though the instruction may have been abstractly incorrect. Alberger v. White, 117 Mo. 347. (3) Failure to embrace all the issues in the case in one instruction is not error, if they are included in the series of instructions given for either party. Muelhausen v. Railroad, 91 Mo. 332. (4) An omission in one instruction, even though material, if supplied by a subsequent instruction, will not afford ground for reversal. State ex rel. v. Hope, 102 Mo. 410; Noble v. Blount, 77 Mo. 235; McKeon v. Railroad, 43 Mo. 405; Burdoin v. Trenton, 116 Mo. 358; Meade v. Railroad, 68 Mo.App. 92. (5) The judgment will not be disturbed as being excessive unless it is so out of line with reason and justice as to shock the conscience or to satisfy the unbiased mind that it was not the result of impartial and unprejudiced deliberation. Perrette v. Kansas City, 162 Mo. 238; Ryan v. Hospes, 167 Mo. 342; Zellars v. Water & Light Go., 92 Mo.App. 107; Smiley v. Railroad, 160 Mo. 629; Covell v. Railroad, 82 Mo.App. 180; Langan v. Weltner, 180 Mo. 322.
--The action is for actual and punitive damages caused by an assault alleged to have been made by appellant on respondent, on May 6, 1904, in the city of St. Louis. The evidence shows that appellant and respondent lived near each other in said city, but were unacquainted. It tends to show that on the morning of the day the assault was made, appellant's thirteen-year-old son made complaint to him that respondent's son had assaulted him and bruised his head. In the afternoon respondent was leading his cow passed appellant's house, when he was pointed out to appellant by his son. Appellant walked out, opened his gate and went to respondent in the street. An altercation ensued, resulting in a fight between appellant and respondent. Appellant maintains respondent commenced the fight by following him up and striking him in the face with his fist. Respondent maintains that appellant, without provocation, struck, beat and kicked him into unconsciousness and then set his dogs on him. Four by-standers testified that appellant walked through his gate, spoke to respondent, struck him, knocked him down three times, and after knocking him down the third time, kicked him several times in the head and while he was down set his dogs on him.
Dr. Button, police officer Driscoll and four other witnesses testified to the unconscious condition of respondent after the assault, and the doctor testified respondent had a wound on his head, that he found impressions on his legs which might have been made by dog bites, and gave it as his opinion that respondent's unconscious condition was caused by concussion of the brain. It was two months before respondent was sufficiently recovered from his injuries to return to work. The statement is made (uncontradicted) in respondent's abstract of the evidence, that respondent was a small, weak man, between sixty and seventy years of age; that appellant was thirty-seven years of age, five feet, eleven inches in height, and weighed over two hundred pounds. The jury found the issues for respondent and assessed his actual damages at one hundred dollars and punitive damages at five hundred dollars.
It is contended by appellant's counsel that the court erred in giving the following instruction:
"The court instructs the jury that if you find and believe from the evidence that on May 6, 1904, defendant, without cause or reason, assaulted and beat plaintiff with his fists and kicked him with his feet, or either beat or kicked him causing plaintiff bodily pain and injury and incapacitating him from labor, then you will find a verdict for plaintiff and assess his actual damages, if any, at such sum as will reasonably compensate him for any bodily injuries he sustained and pain he...
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