Custer v. Kroeger

• Decision Date: 04 April 1922
• Parties: DANIEL M. CUSTER, Respondent, v. JOHN H. KROEGER, Appellant
• Court: Missouri Court of Appeals

240 S.W. 241

209 Mo.App. 450

DANIEL M. CUSTER, Respondent, v. JOHN H. KROEGER, Appellant

Court of Appeals of Missouri, St. Louis

April 4, 1922

Appeal from the Circuit Court of Lewis County.--Hon. James A Cooley, Judge.

AFFIRMED.

Judgment affirmed.

James C. Dorian, Charles J. Fox and H. S. Rouse for appellant.

(1) The instruction in the nature of a demurrer offered at the close of all the evidence in the case should have been given. Charles v. Patch, 87 Mo. 450; Hyde v. Mo. P. Ry Co., 110 Mo. 272; Knapp v. Hanley, 108 Mo.App 353. (2) The question of punitive or exemplary damages should not have been submitted, and under the law, the pleadings and evidence the court should have held that punitive damages could not have been recovered in this case. Orscheln v. Scott, 90 Mo.App. 352. (3) Instructions Nos. 1 and 3, on the part of plaintiff was an unfair comment on the evidence, singling out particular parts thereof, and submitting issues not raised by the pleadings, and an attempt to enlarge the issues by instructions. Hamilton v. Railway Co., 114 Mo.App. 504; Price v. Railroad, 72 Mo. 414; Glass et al. v. Gilvin, 80 Mo. 297; Mitchell v. U. Rys. Co., 125 Mo.App. 11; Galbreth v. Fleming, 27 N.W. 581; Fisentraut v. Fleming, 150 N.W. 527.

(4) Instruction No. 4, given on the part of plaintiff was error, the same not being a true and legal definition of malice and unfair and prejudicial to the defendant. McNamara v. St. Louis Transit Co., 182 Mo. 676; U. S. v. Taylor, 2 Sum. 276; Geotz v. Ambe, 27 Mo. 28; Peak v. Teudmand, 251 Mo. 390; Dickensheet v. Mining Co., 200 Mo.App. 158. (5) The court erred in giving its own motion instruction "A" the same presenting an issue not raised by the pleadings, and being outside the issues. Glass et al. v. Gelvin, 80 Mo. 297; Iron Mountain Bank v. Armstrong, 62 Mo. 70; Degonia v. St. L. I. M. & S. Co., 224 Mo. 564; State ex rel. v. Ellison, 270 Mo. 645; Grout v. Central Electric Co., 151 Mo.App. 330. (6) The verdict is excessive and the result of passion on the part of the jury. Neff v. City of Cameron, 213 Mo. 350; Harper v. Railroad Co., 186 Mo.App. 296; Mann v. Weis, 185 Mo.App. 344; State v. Primm, 98 Mo. 372.

Hilbert & Henderson and A. F. Haney for respondent.

BIGGS, C. Allen, P. J., and Becker, J., concur; Daues, J., not sitting.

OPINION

BIGGS, C.

--This action seeks damages for an assault and battery, which is alleged to have been wilful, unlawful and malicious. The answer, in addition to a general denial, sets up a plea of self defense. The cause was tried before a jury, where the plaintiff had a verdict for $ 250 actual and $ 1250 exemplary damages.

Defendant appeals, alleging error in failing to sustain his demurrer to the evidence, in permitting a recovery of punitive damages under the facts of the case, error in the instruction given on behalf of plaintiff and of the court's own motion, and in addition a claim is made by the defendant that the judgment is excessive.

The material facts necessary to rule on the demurrer are these:

Plaintiff is a practicing physician residing at Durham, Missouri. With his family he occupied a building where he conducted a hotel and where he also had an office for the practice of his profession. His office adjoined the hotel office, being connected therewith by a door. The defendant is a farmer residing a short distance form Durham. Prior to the 10th day of January, 1918, the parties had been friends, and the defendant had the plaintiff $ 2500 secured by deed of trust on certain land owned by the plaintiff in Indiana, which was valued at $ 10,000. At the time the loan was negotiated, which was about two years prior to January 10th, the plaintiff had furnished an abstract of title to the land, which with the other loan papers was deposited with the defendant. This loan was to mature on February 9, 1918. Some time in December the plaintiff asked the defendant if he would renew the loan, and the defendant told plaintiff he would not do so, that he desired it paid, whereupon the plaintiff requested the defendant to return to him the abstract which he had furnished and deposited with the defendant, so that he could make arrangements for a new loan with other parties. This the defendant did and caused the abstract to be placed in the plaintiff's hands so that he could make arrangements for a new loan and be ready to pay the defendant his debt, which as stated would fall due on February 9, 1918. On January 10th, and while the plaintiff was still negotiating for the new loan, the defendant requested the plaintiff to return to him the abstract, whereupon he was told by the plaintiff he needed it to complete his arrangements for a new loan, but that if the defendant wanted to see it he could come to his office and he would let him look at it. About six o'clock of that day in response to that invitation the defendant went to the office of the hotel, where he met the plaintiff and they went into the adjoining room which was occupied by the plaintiff as an office. Plaintiff testified that when they got into the office the defendant brought up the subject of the abstract, and plaintiff thinking that he simply wanted to read it, obtained it from his desk and handed it to the defendant, whereupon the defendant looked at it and then folded it up and put it in his coat pocket. Plaintiff thereupon remonstrated with the defendant and told him that he needed the abstract in order to get a new loan so as to be able to pay the defendant's note, and that the defendant should not take it out of the hotel. Whereupon the defendant stated, according to plaintiff's testimony, that he was going to take it out of the hotel, and he got up and was leaving the room, whereupon the plaintiff picked up a stove poker, which was under the stove in the center of the room, and stood at the door which led from the room into the hotel office, and demanded that the defendant lay down the abstract, stating that he had to have it, that he could not get along without it to meet his obligations. Plaintiff admitted that he flourished the poker to hold the defendant back, and that the defendant then went to the telephone which was in the office, and called up his son who was at his home, and requested that he come in town. Meanwhile plaintiff stood at the door with the poker in his hand and threatened to hit the defendant if he declined to leave the abstract, whereupon the defendant approached the plaintiff, opened a pocket knife, and as the plaintiff was receding and backing through the door and while standing on the threshold the defendant with his left hand grabbed the poker, and being a larger and stronger man than the plaintiff jerked it from his grasp and cut plaintiff in the hand with the knife. Plaintiff then backed into the hotel office, which was a large room some twenty feet long, followed by the defendant, and while thus retreating the defendant struck the plaintiff with the poker, this blow landing on plaintiff's hand and, according to the testimony of plaintiff, the flesh of the hand was broken by the blow and the bones of his hand crushed. Plaintiff testified that by reason of the injuries received there will always be a deformity of defect in his hand, although there would be no permanent pain; that the blow received crushed the bones of his hand.

Plaintiff testified with reference to the occurrence: "Q. What was the character of his language (meaning the defendant)? A. While going after me he wasn't using language, he crowded me too hard, he went after me too savage. I had all I could do to get out. Q. Before that what was his language? A. He kept swearing by God he would get the abstract, and by God you won't get the abstract. Q. What did you do when he kept crowding you? A. I got away through the door into the next room and gradually went east through a door and then came in there through another door and back into my private office where we started. Q. Was he still in an angry mood and did he have those weapons in his possession? A. Yes, sir. Q. Then what did you do? A. When I got in my private office I grabbed a shot gun and I knew where some shells were, and I came to the door between the two office rooms and Kroeger was in there with his weapons in his hands and defying me and everybody, and my wife was trying to get him to go out, but he was flourishing the poker and I pulled the gun on him and ordered him out of the house and he defied that and came after me with the poker and I closed the door on him several times in order to keep him away from me. Q. Did he finally leave the house? A. In probably five or ten minutes after demanding and insisting and leveling the gun on him and threatening and all that with the help of other people and my wife he finally went out the door with the poker and abstract and after a time he came back later and handed the poker through the door."

The evidence of the plaintiff was corroborated by several witnesses who were in the hotel office at the time, one testifying defendant cut the plaintiff with a knife and also struck him with the poker, and that when the defendant hit the plaintiff with the poker on the hand plaintiff was trying to get away from him.

The foregoing evidence warranted a recovery of both actual and punitive damages. The right of self defense justified the defendant in using only such force as was necessary for his protection, and did not authorize him, after plaintiff was retreating and trying to withdraw form the combat, to pursue plaintiff and unnecessarily attack him. The right of...