Endicott v. Robertson

• Decision Date: 06 November 1922
• Citation: 244 S.W. 947,211 Mo.App. 508
• Parties: JOHN VERNON ENDICOTT, Respondent, v. EMMETT ROBERTSON, Appellant
• Court: Kansas Court of Appeals

244 S.W. 947

211 Mo.App. 508

JOHN VERNON ENDICOTT, Respondent, v. EMMETT ROBERTSON, Appellant

Court of Appeals of Missouri, Kansas City

November 6, 1922

Appeal from the Circuit Court of Cole County.--Hon. J. G. Slate Judge.

AFFIRMED.

Judgment affirmed.

Irwin & Haley and Dunn & Cook for appellant.

Ira H Lahman for respondent.

OPINION

BLAND, J.

This is an action to recover damages for an assault and battery alleged to have been made by defendant upon plaintiff. There was a verdict and judgment for plaintiff in the sum of $ 1 actual and $ 250 punitive damages and defendant has appealed.

The facts show that plaintiff was the principal of a public school located at Russellville, Cole County Missouri. Attending the school was the fifteen year old son of defendant. On November 25, 1919, plaintiff whipped the son for creating a disturbance in "lining up" preparatory to marching into the school building. The court refused to permit defendant to show that there were marks upon the boy tending to show a cruel and inhuman whipping. That evening the son exhibited his legs and back to his father and the following morning the father went to the schoolhouse, took hold of plaintiff by the collar and shoulder, shoved him into a near-by cloak room and kept him there for a few minutes talking to him. On Thursday the 18th day of December, 1919, plaintiff again whipped defendant's son in a manner cruel and inhuman according to defendant's evidence but denied as such by plaintiff's evidence. On reaching home that evening the son again exhibited the condition of his legs and back to his father. The reason assigned by plaintiff for whipping the boy upon the last occasion was that the boy had written a certain note, which had come into possession of plaintiff, containing a vulgar word.

On Saturday morning following the last whipping plaintiff and defendant met in a public garage in Russellville. Plaintiff testified that on that occasion he had entered the garage when defendant came in and asked to see the note; that before plaintiff had time to reply defendant knocked him down and as he would get up defendant would knock him down again. He did not know how many times he was knocked down but several; that defendant struck with his fist. Defendant's version of the occurrence was that he was going up town and on passing the garage saw plaintiff coming into the door in his car. Defendant asked him about the note and plaintiff said he did not have it. Defendant then asked, "where is it at," to which plaintiff replied, "that is my business," and defendant thereupon slapped plaintiff upon the jaw. Defendant testified that plaintiff "kept talking about the note and talked like he would get it and we kept talking about that, and then when he disputed my word I slapped him again." Defendant denied that he knocked plaintiff down but said that he picked plaintiff up and laid him down; that he did not hit him while he was lying down. When defendant was asked what caused him to slap plaintiff, he said, "He disputed my word and told me 'that was his business' about the note when I asked him for the note."

Plaintiff's petition consisted of two counts: The first covering the battery at the schoolhouse and the second the one at the garage. However, during the trial plaintiff dismissed as to the first count but went to the jury on the second. Defendant's answer to the second count consists of a general denial and the pleading as provocation that defendant's son had been whipped by plaintiff in a cruel and inhuman manner; that defendant met plaintiff and requested plaintiff to show him a note which plaintiff claimed had been written by defendant's son in order that defendant might ascertain whether or not the note was in the handwriting of his son, and that--

" . . plaintiff in an insolent, insulting and taunting manner refused to allow the defendant the privilege of seeing said note and that by reason of his acts and conduct toward the defendant on said occasion defendant did with his open hand slap the plaintiff on the side of the head; that said slapping was brought about and occasioned by the unreasonable and unwarranted conduct of the plaintiff towards the defendant in his acts, conduct and insolent words, and not...