Emmons v. Quade

• Decision Date: 09 June 1903
• Citation: 75 S.W. 103,176 Mo. 22
• Parties: EMMONS v. QUADE et al.
• Court: Missouri Supreme Court

75 S.W. 103

176 Mo. 22

EMMONS v. QUADE et al.

Supreme Court of Missouri, Division No. 2.

June 9, 1903.

ASSAULT — CIVIL ACTION—CHILDREN — TRESPASSERS—NEGLIGENCE—TRIAL—ISSUES —INSTRUCTIONS—APPEAL.

1. Where the grounds for a motion for a new trial were that the court erred in giving several specified instructions, and the court granted a new trial, and specified in its record that it erred in giving one certain instruction, on appeal from the order the appellee was not precluded from insisting on error in the other instructions.

2. Plaintiff sued for trespass to his person, alleging that while he, with other boys, was playing in one of defendant's cars, defendant's employé assaulted him, and in attempting to escape he fell and was injured. Defendant admitted attempting to imprison the boys in the car in order to turn them over to the officers. The court instructed that defendant had a right to drive plaintiff out of the car, and that if it was not guilty of any violence, but plaintiff, fearing he might be locked in the car, fell because of the fright, defendant was not responsible. Held, that this was erroneous, the action not being founded on negligence.

3. Defendant's act was an unlawful assault, and it was liable for the natural consequences.

4. The instruction was inapplicable to the issue, because defendant's evidence showed that defendant's effort was to imprison the boys in the car, and not to drive them away.

5. Instructions to find for defendant if plaintiff was injured by contributory negligence in getting out of the car were erroneous, contributory negligence being no defense to a willful assault.

6. Plaintiff alleged that while he, with other boys, was playing in one of defendant's cars, he was assaulted by one of defendant's employés, who acted wrongfully, negligently, wantonly, and unlawfully in driving them away. The case was tried on the theory of willful and unlawful trespass to plaintiff's person, and plaintiff's instructions were so limited. Held, that the plaintiff's use of the word "negligently" in his petition did not tender the issue of negligence, and warrant instructions for defendant thereon.

7. In an action by a boy of 12 for an assault committed on him while playing in one of defendant's cars, it was improper to instruct that defendant was authorized to "drive" the boy away, without requiring defendant to notify plaintiff or order him out of the car, and without limiting the force defendant might lawfully use.

Appeal from Circuit Court, Jackson County; Roland Hughes, Special Judge.

Action by Guy Emmons, by his next friend, against T. N. Quade and the Kansas City Milling Company. There was a verdict for defendants, and from an order granting plaintiff a new trial, defendants appeal. Affirmed.

Harkless, O'Grady & Crysler, for appellants. Shannon C. Douglass and P. D. Clear, for respondent.

GANTT, P. J.

This is an appeal from an order of the circuit court of Jackson county, granting plaintiff a new trial. The action is for damages for personal injuries. The plaintiff is a boy about 12 years old— rather small for his years. Just prior to the trespass to his person, of which he complains, he had gone with some other boys into an empty box car standing in the yards of the Kansas City Milling Company to gather up the wheat left therein when unloaded. While other boys had been in the habit of going into these empty cars and gleaning the loose wheat and corn left therein, this was plaintiff's first visit. The company, it seems, was annoyed by the boys, and ordered Quade to keep them out. On August 3, 1898, Quade discovered some boys, including plaintiff, in one of the cars. The car was standing east and west, and both doors—that on the north and the one on the south—were open. Quade ordered Kemper, another employé, to close the south door quickly, and at the same time he attempted to shut the north door. The plaintiff's testimony tends to show that he had a club in his hand at the time, and, just as he undertook to close the north door, exclaimed to the boys, with an oath, "Get out, or I will hurt you." Plaintiff was greatly frightened at the threat and action of Quade, and the prospect of being imprisoned in the car, and endeavored to escape out of the north door, which, for some reason, Quade did not succeed in closing entirely. The evidence for plaintiff tended to show Quade not only shoved the door violently against his side and left arm, but struck him with the club on the left arm, and by reason of the shove and the blow he fell to the ground, and sustained a fracture of the bone of his left arm and of the cap of his elbow, resulting in a permanent injury. He sued for $4,000 for compensatory and $1,000 exemplary damages. For the defendants, the evidence shows that Quade was acting under the orders of the milling company; that he was endeavoring to catch the boys in the car and turn them over to the police; that he did not strike plaintiff with a club at all, or even strike at him; that, in escaping from the car, plaintiff got caught on the foot of another boy, or some obstruction, which threw him sideways and caused him to fall on his left shoulder, and it was in this way he received his injury. Quade denied swearing at the boys and threatening them. The defendants' evidence also tended to show the injuries were not so serious as claimed by plaintiff, and that defendants were using reasonable means to keep the boys from trespassing on the property of defendants. The jury returned a verdict for defendants, and thereupon, in due time, plaintiff filed his motion for new trial, which the court sustained. This appeal is based upon the alleged error in sustaining this motion. The grounds of the motion for new trial were, briefly, that the court erred in giving for defendants instructions Nos. 3, 4, 5, 6, and 7; that instruction 5 for defendants was contradictory of instructions Nos. 1 and 3 given for plaintiff. The court granted a new trial, and specified in its record that it erred in giving instruction No. 5 for defendants.

1. Preliminary to an examination of the question whether the court erred in granting a new trial on the ground that its instruction No. 5 for defendants was erroneous, counsel have earnestly pressed us to hold that, inasmuch as the circuit court only granted the new trial for the one error, plaintiff is precluded on this appeal from insisting the court erred in giving any other instruction, or in any other respect. Counsel for defendants insist that this is the rule announced in Candee v. Ry. Co., 130 Mo. 142, 31 S. W. 1029. This is a misapprehension of that case. We said in that case: "If the trial court assumes to set aside a verdict for any reason not contained in the motion, it is still its duty to specify that reason upon the record; but, whatever the grounds for its order, it was clearly the intention of the statute to give the right of appeal from its decision thereon, and if, in the opinion of the appellate court, its reasons are insufficient, the verdict must stand, and the cost of another trial avoided, in the absence of affirmative showing by the party in whose favor the new trial was granted that it was properly set aside on other grounds." In that case, as in Bradley v. Reppell, 133 Mo. 545, 32 S. W. 645, 34 S. W. 841, 54 Am. St. Rep. 685, no other exceptions to evidence or instructions had been taken, and so the one instruction on which the court granted the new trial was the only point before us for review. In this case the plaintiff, as the record discloses, duly excepted to defendant's instructions 3, 4, 5, 6, and 7, and insisted that defendant's...