Goetz v. Ambs

• Decision Date: 31 March 1858
• Citation: 27 Mo. 28
• Parties: GOETZ, Respondent, v. AMBS, Appellant.
• Court: Missouri Supreme Court

27 Mo. 28

GOETZ, Respondent,

v.AMBS, Appellant.

Supreme Court of Missouri.

March Term, 1858.

1. It is generally sufficient in pleading to state facts according to their legal effect; an averment, in a petition in trespass, that the defendant beat and struck plaintiff, will be sustained by evidence showing that he was present aiding and encouraging others in so beating and striking him.

2. To warrant a jury in giving exemplary damages, in an action of trespass, it is not necessary to show that the defendant was prompted by ill will and hostility toward the plaintiff.

3. If an injury to the person be committed unintentionally and result simply from a want of care, the damages awarded should be compensatory; if it be willful and intentional, exemplary damages may be allowed.

4. Where in an action of trespass the defendant seeks to show that the plaintiff has no interest in the suit, that he has assigned the cause of action or any interest in the judgment that he expected to obtain, he must set up this matter in his answer.

5. Verdicts of juries should not be set aside on the ground that the damages allowed are excessive, unless they are so extravagant as to bear evident marks of prejudice, passion or corruption.

Appeal from St. Louis Court of Common Pleas.

This was an action for an assault and battery. On the first trial of the cause the jury gave a verdict in favor of the plaintiff, and assessed the damages at the sum of two thousand dollars. The supreme court granted a new trial on the ground of the excessiveness of the damages. (See Report of case, 22 Mo. 170.) On the new trial the evidence showed a permanent loss of one eye. The jury found a verdict for the plaintiff, and assessed the damages at the sum of three thousand dollars.

The court, at the instance of the plaintiff, gave the following instructions: “1. If the jury find for the plaintiff, they should allow such damages as will compensate him for the expenses he incurred in endeavoring to cure himself of the injury by the defendant and for his loss of time, and for any damage he may have suffered, permanent or otherwise, to him in pursuing his trade in consequence of such injury; and in addition thereto may allow such further sum, for exemplary damages or smart money, as they may, under all the circumstances and facts in evidence, deem right. 2. If the jury shall believe from the evidence that the plaintiff was struck in his left eye by the defendant with the butt end of a whip which he held in his hand, they will find for the plaintiff, and assess such damages as from the evidence he has sustained; and in addition thereto may allow such further sum, for exemplary damages or smart money, as they may, under all the circumstances and facts in evidence, deem right. 3. If the jury believe from the evidence that the defendant did commit the assault and battery complained of, then the defendant cannot, under the pleadings, set up any matter in justification of the same.”

The court, of their own motion, gave the following: “If the jury find for the plaintiff, it is for them to determine whether they will allow exemplary damages, and if so, how much. In determining the question of exemplary damages, they should consider all the facts and circumstances connected with the inflicting of the injury, and the motives and conduct of the defendant at the time, if the injury was inflicted by him. 5. If the jury believe from the evidence that the blow in question was not struck by the defendant, and that he did not participate in the quarrel, except for the purpose of preserving the peace or preventing a disturbance, and did not instigate or countenance the giving of the blow in question, then they should find for the defendant. 6. If there was a quarrel or general fight at the Camp Spring garden at or about the time the plaintiff was injured, and the plaintiff did not participate therein, then that fact should not be considered as mitigating the damages if the defendant intentionally struck the plaintiff in the manner charged. 7. If the jury believe from the evidence that any witness has willfully testified falsely to any material fact, they should reject all parts of his testimony which are false, and are at liberty to reject his testimony altogether. It is the exclusive province of the jury to determine what weight should be given to the testimony of each witness.”

The defendant asked the following instructions, which were refused: “1. If the jury should find that any other person than Ambs struck the plaintiff, by means of which striking plaintiff was injured as complained of, then they should find for the defendant, even if they should be of opinion that defendant was present countenancing such striking. 2. The jury must find for the defendant, unless they are satisfied that the defendant committed the injury complained of in person. 3. Unless the jury believe from the evidence that defendant deliberately and maliciously struck the plaintiff with the intent to injure him, then they ought not to give exemplary damages against him. 4. In allowing smart money to plaintiff, in case the jury should find for plaintiff, the jury should consider mainly the malicious intent and motive of defendant in committing the injury complained of.”

The court, at the instance of the defendant, gave the following instruction: “If the jury believe that any one witness in this case has corruptly sworn falsely to any statement in his testimony, then the jury are bound to disregard the whole of such statement, and may discard the entire evidence of such witness. The jury are left the exclusive judges of the credibility of witnesses, and must weigh the testimony of each witness in accordance will all the facts proved.”

Hudson & Thomas and Reynolds, for appellant.

I. The first and second instructions given were erroneous. They did not tell the jury what facts and circumstances would authorize them in giving smart...