Coxe v. Whitney

• Decision Date: 31 October 1845
• Citation: 9 Mo. 531
• Court: Missouri Supreme Court
• Parties: COXE ET AL. v. WHITNEY.

9 Mo. 531

COXE ET AL.

v.WHITNEY.

Supreme Court of Missouri.

October Term, 1845.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

GEYER, for Appellants. The appellants submit the following propositions: 1st. The plaintiff claimed vindictive damages, and, in the third instruction given, the court says he was entitled to it, thus placing before the jury the motives of the defendants, and “all the circumstances which give character to the assault,” as proper for their consideration. The defendants ought to have been allowed to read in evidence, in mitigation of damages, the scandalous article in the Picket Guard, in which the wife and brother of the defendant, Coxe, and the near relative of the other defendants, were most brutally assailed. 2nd. If the jury were authorized in a civil action to give exemplary damages, they ought to have been allowed to consider the facts and circumstances which influenced the defendants, as well those in mitigation, as those in aggravation. Peabody v. Winchester, 7 Law R. 384 (contained in No. 8, for Dec. 1844). 3rd. The evidence offered by the defendants was important to explain and enable the jury to understand, the testimony given by the plaintiff, as to the object of the visit of the defendants, showing it to have been lawful and proper, and tending to negative the presumption of a preconcerted design to commit violence, from the fact of their presence. 4th. The court erred in directing the jury that they might award exemplary damages, in proportion to the malicious conduct of the defendants; because, first, it assumes the existence of malice; because, secondly, the malice of the defendants is not in any such case the measure of damages, but the injury to the plaintiff; and thirdly, the plaintiff was entitled only to the damages, for the injury done to his person and feelings, and not by way of public punishment. Actions of assault and battery, are not instituted or entertained for the purpose of example, but for indemnity; exemplary punishment whether inflicted on the person or purse, belongs exclusively to criminal cases. 5th. After excluding from the jury, the consideration of the conduct of the plaintiff, and the nature of his vile and unprovoked libel, it was manifestly unjust, and therefore unlawful to direct and encourage the jury to award exemplary damages. 6th. The second article in the Picket Guard, was improperly excluded, because being the joint production of the plaintiff and his partner, it is in law his own, and ought to have been received as his account of the assault, and the causes of it. 7th. The instructions given by the court, assume the commission of an assault, by one or more, and malice on the part of all of the defendants, and indicated the opinion of the court on the facts too plainly against the defendants, and for that reason the judgment ought to be reversed. 8th. The defendants were entitled to a new trial, because of misdirection by the court; and the exclusion of legal and competent evidence; and also because the jury disregarded the second instruction given for defendants, and found their verdict without any evidence of facts material. There being no evidence that an assault was committed by any of the defendants but one, or that either of the others aided or abetted the assailant; or that previous to the assault there was a common design to commit such assault, and that it was committed in pursuance of such design. The jury was not authorized (as the court intimated it was, in the fourth instruction for plaintiff), to find the existence of a common intent, without evidence.

T. POLK, for Appellee. In support of the judgment rendered by the court below, the counsel for the appellee, relies upon the following points and authorities: 1st. The Circuit Court committed no error in excluding from the jury the article in the Picket Guard, No. 17, of the date of 6th of September, 1842. At least two days having elapsed between the issuing of said No. and the infliction of the battery. Avery v. Ray et al., 1 Mass. R. 11; Lee v. Woolsey, 19 Johns. R. 319; Beardsley v. Maynard, 4 Wend., 336; Maynard v. Beardsley, 7 Wend., 560; May v. Brown, 3 Barn. & Cres. 113 (10 Eng. C. L. R. 24); Wakely v. Johnson, 1 Ryan & Woody, 422 (21 Eng. C. L. R. 480); Rochester v. Anderson, 1 Bibb, 428; and McAlexander v. Harris, 6 Munford, 455. 2nd. The court below ruled correctly in excluding from the jury the article in No. 20 of the Picket Guard, dated the 9th September, 1842. Finney v. Allen, 7 Mo. R. 416; 5 Mo. R. 476. 3rd. The court below committed no error in the instructions it gave to the jury. 1 Bac. Abr. title, Assault and Battery, p. 243; Tomlin's Law Dic. Assault; 1 Hawkins' Pleas of the Crown, 263; Halsey et al. v. Woodruff, 9 Pick. R. 555; Bohnn v. Taylor, 6 Cond. R. 313; 2 Strange, 910; 11 Coke's R. 5, abr'd ed. 323; 5 Bur. 2790; 1 Strange, 422; 2 Bac. Abr. title Dam. D. 4, p. 272; 1 Wils. 30; 6 Term R. 199; 2 Tidd's Pr. 805; 9 Pick. R. 555; 2 Bac. Abr. title Dam. D. 1, p. 366; 14 Johns. R. 352; 19 Johns. R. 381; 10 Wend. 654; 7 Mo. R. 57; Code of 1835, 343; 9 Bing. 333; 8 Barn. & Cres. 417; 4 Barn. & Ald. 430; 6 Taunt. 460; 12 East, 229; 1 Pick. R. 38. 4th. The court below committed no error in overruling the motion made by defendants for a new trial. Code of 1835, p. 343, § 8; 9 Bing. 333 (23 Eng. C. L. R. 296); 8 Barn. & Cres. 417 (15 Eng. C. L. R. 252); 4 Barn. & Ald. 430 (6 Eng. C. L. R. 475); 6 Taunt. 460 (1 Eng. C. L. R. 452); 12 East, 229; 1 Pick. R. 38.

NAPTON, J.

This was an action of trespass, assault and battery, brought by Whitney against Coxe, Christy, Mitchell and Schumburg. Each defendant pleaded separately, “not guilty,” and a separate plea of son assault demesne. To these pleas, replications were filed, traversing the pleas, and the issues taken were tried at the last April term of the St. Louis Circuit Court. The plaintiff had a verdict and judgment against all the defendants for sixteen hundred dollars.

The plaintiff, Whitney, was the editor, or one of the editors, of a newspaper, printed in St. Louis, called the “Picket Guard,” and was also an engraver, and took daguerreotype likenesses, at a room in the second story of a house at the northeast corner of Market and Fourth streets. This was also his lodging room. On the 6th September, 1842, an article appeared in the Picket Guard reflecting upon the wife of Coxe, one of the defendants; the other defendants being nearly connected by blood or marriage with Mrs. Coxe. On the 8th, the defendants went to the room of the plaintiff, and made the assault complained of. No person was present at the commencement of the assault. The first words heard by a witness, who had been attracted to the spot by the cries of murder, were from one of the defendants: “We asked him to sign this, and he refused.” To which Whitney replied, “I wanted to make some alterations before I signed, and they struck me.” Some one asked Whitney why he did not defend himself, to which he replied, “he had no weapons.” The defendant, Christy, swore he would have satisfaction, and attempted to strike Whitney with a knotted varnished hickory cane, but was prevented. A pistol was also seen in Christy's possession. Whitney was badly hurt, having received several wounds on his face, nose, head and ears, which occasioned great effusion of blood, and...