Ellis v. Wahl

• Decision Date: 02 June 1914
• Docket Number: No. 1281.,1281.
• Citation: 167 S.W. 582,180 Mo. App. 507
• Parties: ELLIS v. WAHL.
• Court: Missouri Court of Appeals

167 S.W. 582

180 Mo. A. 507

ELLIS v. WAHL.

No. 1281.

Springfield Court of Appeals. Missouri.

June 2, 1914.

1. ASSAULT AND BATTERY (§ 39)—PUNITIVE DAMAGES—ALLOWANCE.

In case of a willful and wanton assault without provocation, exemplary damages are allowed as a punishment to defendant, and, in considering such damages, the jury may regard the malice of defendant and the insulting nature of his conduct.

2. ASSAULT AND BATTERY (§ 27)—ACTIONS— EVIDENCE.

In an action for an assault and battery, where plaintiff, who claimed exemplary damages, testified that the assault was without provocation, that defendant, who held his note secured by a chattel mortgage on the fixtures in his pool hall, came to his place of business demanding payment, which was not forthcoming, and that he gave defendant the keys to close up the place, whereupon defendant assaulted him when he requested his note, it is improper to exclude evidence that plaintiff had admitted that he had sent for defendant to come and take charge of the business; for the motive of defendant in going to the place where the assault occurred was material, as plaintiff claimed exemplary damages.

3. CONTINUANCE (§ 30)—AMENDMENTS—SURPRISE.

Where plaintiff and his physician were, without objection, allowed to testify that defendant injured his nose, before there was any objection that the petition did not allege an injury to plaintiff's nose, the allowance of a trial amendment which inserted in the petition allegations as to that injury did not entitle defendant to a continuance on the ground of surprise, claimed under Rev. St. 1909, § 1961, providing that, when the court shall be satisfied by affidavit or otherwise that, in consequence of an amendment, the opposite party cannot be ready for trial, a continuance shall be granted, for defendant could not have been surprised by the evidence as to the breaking of plaintiff's nose, or objections to such testimony would have been interposed when first offered.

4. APPEAL AND ERROR (§ 920)—REVIEW—PRESUMPTIONS.

Every intendment exists in favor of the trial court's action in an application for a continuance.

5. DAMAGES (§ 143) — PLEADING — SUFFICIENCY.

An allegation in the petition seeking a recovery for injuries caused by defendant's assault that defendant beat and wounded plaintiff by striking him in and about the right eye and on the nose is sufficiently general to permit recovery for the breaking of plaintiff's nose.

Appeal from Circuit Court, Pemiscot County; Frank Kelly, Judge.

Action by James W. Ellis against James S. Wahl. From a judgment for plaintiff, defendant appeals. Affirmed, on condition that plaintiff enter a remittitur; otherwise reversed and remanded.

Ward & Collins, Duncan & McCarty, and A. L. Oliver, all of Caruthersville, for appellant. Sam J. Corbett and Shepard, Reeves & McKay, all of Caruthersville, for respondent.

FARRINGTON, J.

Action for damages for personal injuries alleged to have been sustained by the plaintiff, James W. Ellis, by reason of an alleged assault and battery. Plaintiff sued for $5,000 actual, and $5,000 exemplary, damages. Nine jurors signed a verdict giving him $250 actual, and $250 exemplary, damages, and defendant appealed.

Plaintiff in his petition filed on June 30, 1913, alleged that defendant, on June 25, 1913, without just cause or provocation, willfully, wrongfully, and unlawfully assaulted, beat, and wounded the plaintiff by then and there choking him in and upon his throat, and by striking plaintiff a heavy blow with his first in and upon the right eye and on the nose of plaintiff, cutting a large gash over the right eye, and bruising the flesh in and around the right eye of plaintiff, and by striking plaintiff a heavy blow with his fist in and upon the left eye, bruising the flesh in and around plaintiff's left eye, and by striking this plaintiff a heavy blow on the back of his head, bruising the flesh on the back of plaintiff's head, and by punching and stamping plaintiff with his knee in and upon the breast of plaintiff, thereby bruising and wounding plaintiff in and upon his said breast. After the usual averments of consequent pain and mental anguish and expense, it is alleged that defendant's acts were willful, wanton, and malicious, and exemplary damages, as well as actual damages, are prayed for.

The answer pleads self-defense, and then sets up what is intended to be mitigating circumstances, in that defendant went to the building where the trouble occurred at plaintiff's request while in a peaceful frame of mind, but that, because of plaintiff's insulting words and manner while in an intoxicated condition, the difficulty was brought on.

The reply is a general denial of the new matter.

Appellant does not contend that plaintiff was not entitled to a verdict, and it is therefore unnecessary to set out the evidence in detail.

Plaintiff for several months prior to the time complained of had been running a pool room in the city of Caruthersville, occupying a building belonging to defendant. It seems that plaintiff had purchased the pool tables and other outfit in connection therewith from a man by the name of Hooper, paying part cash and giving a series of notes in the sum of $50 each, due monthly, evidencing deferred payments, which said notes were secured by mortgage covering said pool tables and other property purchased of Hooper by plaintiff. Hooper was at said time in the saloon business in the city of Caruthersville, while defendant, Wahl, was agent in said city of the Lemp Brewing Company, thereby coming in contact with, and having numerous dealings with, the said Hooper, and the said Hooper, being indebted to the defendant, Wahl, assigned the notes given by the plaintiff to the said Wahl, the defendant, as security for the indebtedness due from Hooper to the defendant. The testimony of plaintiff and defendant both shows that they had personally known each other some eight or ten years, and that during all this time their relations had been pleasant, and that no ill feeling was held by either toward the other. Plaintiff testified that, notwithstanding the long years of friendship, on the day of the difficulty defendant came to the pool room twice, and on the occasion of the first visit advised plaintiff that he held the notes which were given for the purchase of the pool tables, and that they were past due, and made demand for his money, to which plaintiff replied, "I will get out and see what I can do;" that about three hours later, defendant came back to the pool room and said to plaintiff, "Give me them damn keys; I want to lock this damn place up;" that at that time they were both sitting on a sofa in the pool room, and that he (the plaintiff) handed the defendant the keys and made the remark, "If you are going to do it, I guess you will give me my note;" that defendant thereupon grabbed him by the throat and pushed him against a pool table, where he (plaintiff) reached back to get a pool ball, but that by reason of being pushed backward he was unable to get hold of a pool ball, and finally fell down, and, while down, defendant, who was still holding him by the throat, struck and hit plaintiff over his eyes and on his nose and on the back of his head, and that defendant put his knees on plaintiff's breast, and that by reason of this treatment he suffered great pain.

The testimony of the defendant is that on the day before the trouble occurred plaintiff came to his office and told him, if he could not raise some money to pay the rent and the notes which defendant held, he (plaintiff) would have to give up the pool room, and asked defendant to wait on him until the next day; that on the following morning plaintiff telephoned him to come to the pool room; that he (plaintiff) would have to give it up. Defendant did not go as requested, but states that about 3 o'clock in the afternoon, while he and a man named Duncan were returning from the railroad depot, being reminded as they passed the pool room of what plaintiff had said to him, he went in and found plaintiff alone, and that this was the first time he had seen plaintiff that day; that plaintiff had the appearance of being in a drunken condition; that when he approached plaintiff he said, "Jim, I have come down;" and that plaintiff replied, "Yes, and here is your damned keys," and threw them on the floor. Defendant states that he then attempted to close the door between the pool room and a saloon room adjoining, but that he could not fasten this door, and asked plaintiff to help him, and that plaintiff replied, "God damn you, you got the keys; close up your own damn building;" that when plaintiff said this he was standing near a pool table, and that, as defendant turned and looked back at him, he saw plaintiff reaching for a pool ball which was about 2½ inches in diameter. Defendant states that from plaintiff's demeanor he believed plaintiff meant to attack him, and that what he did was to prevent this.

Defendant offered to prove by Lee Hooper that on the same day of the difficulty and just a few hours prior thereto, plaintiff told the witness he had phoned defendant to come and take charge of the pool room, and that he had sent a messenger after defendant, and stated to the witness that as soon as defendant came he would turn the building over to him, but, upon plaintiff's objection, this testimony was excluded.

Appellant strenuously contends that this last-mentioned evidence should have been admitted, in order that the jury might know why he went to get the keys from plaintiff, and as showing mitigating circumstances to rebut plaintiff's theory that the assault was wrongfully and maliciously committed, by reason of which plaintiff hoped to recover exemplary damages. Plaintiff had testified that defendant appeared on the scene with the profanity and threatening attitude hereinbefore detailed.

In this class of actions, where exemplary damages are sought, the jury are not restricted...