Dailey v. Houston

• Decision Date: 31 October 1874
• Citation: 58 Mo. 361
• Parties: JAMES DAILEY and MARY DAILEY, his Wife, Respondents, v. AARON B. HOUSTON and MARTHA J. HOUSTON, his Wife, Appellants.
• Court: Missouri Supreme Court

58 Mo. 361

JAMES DAILEY and MARY DAILEY, his Wife, Respondents,

v.AARON B. HOUSTON and MARTHA J. HOUSTON, his Wife, Appellants.

Supreme Court of Missouri.

October Term, 1874.

Appeal from Putnam Circuit Court.

G. W. Easley, for Appellants.

I. If Houston directed the assault to be made, or was present and knew that it was being made, prima facie it was done under coercion of the husband, and the wife cannot be held liable. (Meegan vs. Gunsolis, 19 Mo., 419; McKeon vs. Johnson, 1 McCord, 578; 52 Mo., 39; 46 Mo., 114; 8 Am. R., 422-5.)

II. In a joint action of husband and wife, for assault and battery on the wife, compensation for the loss of service cannot be included in the damages. (Hill. Torts, [2 Ed.] p. 694, § 1; Barnes vs. Martin, 15 Wis., 240.)G. D. Burgess, for Respondents.

I. The second instruction given by the court in behalf of plaintiffs, correctly lays down the law as to the measure of damages in cases of this kind. (Buckley vs. Knapp, 48 Mo., 162, 163; McNamara vs. King, 2 Gil., 432; Clements, vs. Maloney, 55 Mo., 352; Bump vs. Betts, 23 Wend., 85; West vs. Forrest, 22 Mo., 344.)

II. Defendants, Aaron B. Houston and his wife, were both proper parties to the suit. The husband is liable for the torts of his wife. (1 Chitt. Pl., 92, [[[[14 Am. Ed.]; Wagner vs. Bibb, 19 Barb., 321; Harbrook vs. Weaver, 10 John., 247; Whittelsey's Pr., 119, § 94; 2 Hill. Torts, 505, §§ 7 8; Smith vs. Taylor, 11 Geo., 20; Obermeyer vs. Greenleaf, 42 Mo., 304.)

III. But if the court should be of opinion that the judgment should not have been rendered against the wife, they are asked to modify the same and order the proper judgment to be rendered in this court. (Wagn. Stat., 1067, § 33; 1068, § 34; State to use of Moore vs. Sandusky, 46 Mo., 377; Russell vs. DeFrance, 39 Mo., 506; Ferguson vs. Ferguson, 36 Mo., 201; Marr vs. McIntosh, 21 Mo., 543; Hunter vs. Miller, 36 Mo., 143; Orth vs. Dorschlein, 32 Mo., 366.)

VORIES, Judge, delivered the opinion of the court.

This action was brought to recover damages for an alleged assault and battery. The petition is as follows: “Plaintiffs state that the plaintiff, Mary Dailey, is the wife of the plaintiff, James Dailey, and that the defendant, Martha J. Houston, is the wife of the defendant, Aaron B. Houston; that on or about the 15th day of June A. D. 1872, the defendant, Martha J. Houston, at the county of Putnam aforesaid, with force and arms, did unlawfully assault and beat the plaintiff, Mary Dailey (then and still being the wife of the plaintiff, James Dailey) with a stone, and then and there willfully, unlawfully and violently beat, bruised and wounded her, the said Mary Dailey, so that her life was then and there greatly despaired of, and that by reason of such beating, bruising and wounding as aforesaid, she was for a long time, to-wit: eight weeks, in great pain and suffered so much pain from the beating, bruising and wounding aforesaid, that she was unable to attend to her ordinary domestic affairs of life which she otherwise would have done, and that they were put to great trouble and expense in consequence of said beating, bruising and wounding as aforesaid, and that they are damaged in consequence of the premises, in the sum of one thousand dollars, for which they ask judgment.”

The answer of the defendants simply denies the assault and battery and the damages charged in the petition. A trial was had, a verdict and judgment rendered against the defendants for five hundred dollars. Motions for a new trial and in arrest of judgment were made and overruled, after which the defendants saved exceptions to the several rulings of the court, and appealed to this court.

The evidence introduced by the parties on the trial tended to prove the existence of the following facts: That on or about the 15th day of June, 1872, the plaintiff, Mary Dailey, and a neigh boring lady were walking along a public road, accompanied by some small children; that as they were passing the house of the defendants, which was situate within forty or fifty feet of said road, Mrs. Martha J. Houston, the wife of defendant, Aaron B. Houston, and who was at the supper table on the porch at said house, remarked to her husband that she would go out to the road and see if Mrs. Dailey had told persons that she, Mrs. Houston, had been the mother of a negro baby before her marriage, and that if Mrs. Dailey had said so, that she would whip her; that the defendant, Aaron B. Houston thereupon told his said wife, that if Mrs. Dailey had been guilty of using such language “to whip her and he would foot the bill.”

It is further shown by the evidence, that Mrs. Houston did go out to the road where Mrs. Dailey and the other lady were passing, where a fight ensued between Mrs. Houston and Mrs. Dailey. The evidence on the part of the plaintiff further tends to prove, that Mrs. Houston brought on the fight, and struck Mrs. Dailey over one of her eyes with a stone, knocked her down and jumped upon and beat her with her hands, and pulled her hair, and that Mrs. Dailey was thereby injured and suffered great pain, from which she was rendered partly unable to attend to her domestic duties for several weeks; that plaintiff, James Dailey, was a farmer in very moderate circumstances, not able to hire help for his wife during her illness, and that defendant, A. B. Houston, was a farmer worth from six to eight thousand dollars.

The evidence on the part of the defendant tended to prove that no stone was used by Mrs. Houston in the fight, and that Mrs. Dailey had caught Mrs. Houston by the hair of her head before Mrs. Houston struck her; and also tended to contradict the evidence on the part of the plaintiff, in reference to the severity of the injury received by Mrs. Dailey. In the cross-examination of defendant's witnesses by the plaintiff it was shown that Aaron B. Houston was in plain view of the parties, at the time of the difficulty, about forty feet distant from the parties engaged; that he had directed and encouraged his wife to make the assault, and had approved of and commended the conduct of his wife immediately after the fight was over.

When the evidence was closed, the court at the request of the plaintiffs instructed the jury as follows:

1. “That no words, however insulting or aggravating they may be, justify or amount to an assault, and if they believe from the evidence, that the defendant, Mrs. Houston, assaulted and beat the plaintiff, Mrs. Dailey, and that the defendant, Aaron B. Houston, was present at the time and did not try to prevent the same, or if he ratified or approved the act after it was done, or in any manner, either by words or acts, encouraged or incited Mrs. Houston to assault the plaintiff, Mrs. Dailey, they are bound to find for plaintiff.

2. If the jury find for the plaintiffs, they will assess their damages at such sum as they may believe from the evidence plaintiffs have sustained, not exceeding the sum of one thousand dollars. And in estimating the damages the jury may take into consideration plaintiffs condition in life, their pursuits and nature of their business, the bodily pains and suferings resulting from the injuries of Mrs. Dailey, the preceding condition in life of the defendants, the mental anguish and wounded feelings of the plaintiff, Mrs. Dailey, and may add thereto damages by way of exemplary damages, as punishment of defendants; provided they believe that such assault was wantonly or intentionally made.

4. Although the jury may believe from the evidence in this case, that the plaintiff, Mary Dailey, did take the defendant, Martha J. Houston, by the hair, yet if they further find that the defendant, Martha Houston, committed any more violence towards the plaintiff, Mary Dailey, than was necessary to repel said assault, then they are bound to find for the plaintiff.”

The defendants at the time objected to the foregoing instructions, and their objections being overruled, they excepted.

The court, at the instance of the defendant, together with other instructions given, instructed the jury, that “the burden of proof in this case is upon the plaintiffs, to show that the defendant, Mrs. Houston, first actually assaulted Mrs. Dailey, and did inflict upon her some injury, otherwise, the verdict should be for the defendants.”

There are several grounds insisted on in this court for the reversal of the judgment rendered by the Circuit Court. It is first insisted, that the petition does not state facts sufficient to constitute a cause of action, for the reason that it fails to aver that the defendants were husband and...