Diehl v. Bestgen

• Decision Date: 01 December 1919
• Docket Number: No. 13364.,13364.
• Citation: 217 S.W. 555
• Parties: DIEHL v. BESTGEN et al.
• Court: Missouri Court of Appeals

217 S.W. 555

DIEHL v. BESTGEN et al.

No. 13364.

Kansas City Court of Appeals. Missouri.

December 1, 1919.

Appeal from Circuit Court, Cooper County; J. G. Slate, Judge.

"Not to be officially published."

Action by Alfred J. Diehl against Andrew J. Bestgen and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Joseph Kane, of St. Louis, and W. G. & G. T. Pendleton, of Boonville, for appellants.

A. L. Shoriridge and W. D. Steele, both of Sedalia, and Roy D. Williams, of Boonville, for respondent.

ELLISON, P. J.

This action was instituted to recover damages alleged to have resulted to plaintiff by reason of an assault and battery committed by defendants. The verdict was for plaintiff in the sum of $500 as compensatory and $1,000 as punitive damages.

Since the verdict was for plaintiff, we will state the case as evidence in his behalf shows the facts to be. `It appears that defendants are father and son, and that the father and plaintiff are brothers-in-law, having married sisters. They reside near Tipton, and on Sunday morning defendants, with some other members of the family, were coming into Tipton in an automobile. They stopped for a friend, and plaintiff passed them in his automobile, when some one in defendant's car, perhaps one of his sons, "hollered" at him in an insulting manner, and he or some of his brothers had been in the habit of so insulting plaintiff for perhaps three years; such conduct being occasioned by trouble the two families had had which furnished the base for a slander suit. When both parties got into Tipton plaintiff stopped on the north side of the street, and defendants, having left the others at church, stopped in front, or nearly so, of a garage to pump air in the tires of their machine. We judge that their respective places of stopping were nearly opposite. Defendant the father was at his machine when plaintiff walked over to him and "made the remark about his boys, the way they had been hollering at me." Defendant denied they had, and took hold of plaintiff's hands, when the son struck him from behind on the head with a monkey-wrench. He repeated the blow several times. Plaintiff fell to the ground, was badly hurt, and bled profusely, so much so that his head and face were bloody and his clothing from neck to feet was soaked in blood. He was confined to his home and had medical attention.

It seems that on being separated they came together again in the garage, but were separated, and no harm of consequence resulted. We have omitted some detail, but the foregoing is sufficient for disposition of the five points of error set up in defendants brief. These relate to the court refusing to allow defendants' attorney to cross-examine plaintiff as to "the fight between himself and defendant Urban immediately following their first encounter," and that the verdict was the result of passion and prejudice, and that "the jury was misled by misleading statements by the attorneys for the plaintiff in referring to other difficulties between the parties," and that the court erred in giving plaintiff's instruction No. 1, and also No. 2.

We discover nothing in the point as to the prejudice of the jury. The record shows none. The amount of the verdict was small if we accept the evidence for plaintiff as being true, and, as we have already said, the verdict of the jury compels us to so consider it. The instructions were short and correct. The first one, relative to the assault on plaintiff by one defendant while the other held him, was not erroneous. The only objection made to it by defendants in their "points" is that it "does not inform the jury as to what does or does not constitute an assault." We think it clearly did so. It was therein declared to be an assault "if one of said defendants struck said plaintiff while the other defendant was holding plaintiff." It was the father who held plaintiff by the hands while the son struck him from behind with a monkey-wrench. The defendants asked and obtained five instructions, and in most of them the word "assault" is used without explanation or definition.

The second instruction, relating to damages, was correct. It contained the word "punitive," and defen...