Cook v. Cook

• Decision Date: 06 February 1939
• Citation: 124 S.W.2d 675,232 Mo.App. 994
• Parties: VIRGINIA COOK, A MINOR BY HER NEXT FRIEND, H. E. BARD, RESPONDENT, v. BELLE COOK, APPELLANT
• Court: Missouri Court of Appeals

124 S.W.2d 675

232 Mo.App. 994

VIRGINIA COOK, A MINOR BY HER NEXT FRIEND, H. E. BARD, RESPONDENT, v. BELLE COOK, APPELLANT

Court of Appeals of Missouri, Springfield

February 6, 1939

Appeal from the Circuit Court of St. Clair County.--Hon. C. A Calvird, Judge.

Judgment reversed.

John M Belisle and Ralph Johnson for appellant.

Lee E Crook and Waldo P. Johnson for respondent.

SMITH, J. Allen, P. J., and Fulbright, J., concur.

OPINION

SMITH, J.

The record before us shows that this suit is based upon the following petition, caption and signature omitted:

"Plaintiff states that she is a minor over the age of fourteen years and under the age of twenty-one years and that the Clerk of the Circuit Court on the 2nd day of August, 1937, on her application, appointed H. E. Bard as her next friend for the prosecution of an action for damages against Belle Cook, the above named defendant, the said H. E. Bard having accepted said appointment and consented to act as said next friend.

"Plaintiff states that on the 28th day of July, 1937, at Collins, Missouri, the defendant, Belle Cook, willfully, wantonly and maliciously assaulted the plaintiff, Virginia Cook, and then and there struck plaintiff on and across the shoulders, back, thighs and breasts with a riding whip or quirt; that the defendant so struck and beat plaintiff a number of times; that as a result of such assault and beating plaintiff's shoulders, back, hips, thighs, breasts and arms were bruised and contused and plaintiff suffered great pain and mental anguish and her nervous system was shocked; that said assault was without cause and was malicious; that on several occasions prior to the 28th day of July, 1937, the defendant had maliciously and without provocation assaulted and beat plaintiff.

"Plaintiff states that by reason of the premises she has suffered actual damages in the amount of One Thousand Dollars and that because said assault was without cause and malicious she is entitled to exemplary or punitive damages.

"WHEREFORE, plaintiff prays judgment against defendant for the sum of One Thousand Dollars actual damages and for the further sum of One Thousand Dollars punitive damages."

To this petition the defendant filed the following demurrer which was by the court overruled:

"Comes now the defendant and demurrers to plaintiff's petition herein for the reason that said petition fails to state a cause of action against this defendant as plaintiff is the Adopted Minor Child of this defendant."

The answer was in the nature of a general denial, after admitting the allegations set out in the first paragraph of the petition.

Trial was had to a jury which resulted in a verdict and judgment of $ 1000 actual damages against the defendant. Motion for new trial was filed, and was by the court overruled upon condition that plaintiff enter a remittitur of $ 400, which was done. In due time an appeal was had to this court.

The case is submitted to us on the following stipulation, caption and signatures omitted:

"It is hereby stipulated and agreed by and between the parties to the above entitled cause as follows:

"That in the trial of this case there was evidence on the part of the plaintiff, that the defendant, willfully, wantonly and maliciously assaulted the plaintiff, Virginia Cook; that there was evidence on the part of the defendant that said assault was administered by the defendant to the plaintiff as a punishment for disobedience. It is agreed that there was substantial evidence to support the verdict of the Jury, if the adopting parent is liable under such circumstances. It is agreed in the record by both parties that the plaintiff was a legally adopted daughter of the defendant of the age of 15 years, at the time of said assault and at the time of the trial, and was a minor; that the defendant at the close of the plaintiff's evidence offered a Demurrer to the plaintiff's evidence, and asked the court to give an instruction that under the law and the evidence the jury must return a verdict for the defendant. The Court overruled said Demurrer, and refused to give said instruction to which action of the Court the defendant then and there excepted and now excepts. At the close of the whole case, the defendant again offered a Demurrer to the evidence, which Demurrer the Court overruled and the defendant then and there excepted to the ruling of the court and now excepts, and

"Whereas, it is desired by both parties to shorten the record in this case, and it is agreed that this Stipulation shall be filed in lieu of a Bill of Exceptions, and that the only issue to be briefed and argued on appeal is the question of whether an adopting parent is liable in damages in an action in Tort to a minor adopted child of such person for a willful, wanton and malicious assault administered by such person to such minor child under the pretense of a correction and the trial court's rulings on said question.

"And it is agreed that this Stipulation shall take the place of the Bill of Exceptions in this cause and sufficiently raise said question for the same to be passed upon by the Appellate Court, and that the Appellate Court shall have jurisdiction of the cause for the purpose of passing on said question."

As may be...