Hill v. Landau

• Decision Date: 07 March 1939
• Docket Number: No. 24906.,24906.
• Citation: 125 S.W.2d 516
• Parties: HILL v. LANDAU.
• Court: Missouri Court of Appeals

125 S.W.2d 516

HILL v. LANDAU.

No. 24906.

St. Louis Court of Appeals. Missouri.

March 7, 1939.

As Modified on Denial of Rehearing March 21, 1939.

Appeal from St. Louis Circuit Court; Thos. J. Rowe, Jr., Judge.

"Not to be reported in State Reports."

Action by Walter Hill against Milton S. Landau for assault. From a judgment on a verdict for plaintiff, defendant appeals.

Reversed and remanded upon conditions.

Cullen, Storckman & Coil, of St. Louis, for appellant.

Robert L. Spelbrink and Wm. H. Corcoran, Jr., both of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages sustained by plaintiff, Walter Hill, by reason of an alleged wrongful assault upon him by defendant, Milton S. Landau. Tried to a jury in the Circuit Court of the City of St. Louis, a verdict was returned in favor of plaintiff, and against defendant, for $2,000 actual damages, and $500 punitive damages. Judgment was rendered in accordance with the verdict; and defendant's appeal to this court has followed in the usual course.

The assault or altercation occurred in or about the areaway which extends between the home of defendant at 4732 Westminster Place, in the City of St. Louis, and that of Dr. Raymond M. Spivy, which is situated immediately to the east of defendant's premises, at 4728 Westminster Place.

The two buildings are separated by an intervening space of approximately eight feet, a portion of which is occupied by a concrete walk two and one-half or three feet in width, which runs flush against the west wall of Dr. Spivy's home.

Defendant testified that the west line of the concrete was the dividing line between the two properties, while Dr. Spivy testified that his property extended about four inches beyond the west edge of the walk.

It appears that mutual ill feeling had existed for many years between defendant and Dr. Spivy over a playhouse belonging to defendant, which stood in the space between the east wall of defendant's building and the concrete walk in question, and was supported on the east by two posts which had been driven into the ground at the very edge of the walk. Under Dr. Spivy's version of the facts, the posts stood, in part at least, upon his property, while according to defendant, none of the playhouse abutted over upon Dr. Spivy's premises.

The playhouse had been constructed out of rough boards or lumber; had windows to the north and east, and a door to the south; and not only reached out from defendant's east wall to the very edge of the concrete walk, but also extended through the areaway for a distance of ten to twelve feet from north to south. It had been erected by the previous owner of defendant's property, and had already stood in the area for a few years when the property was purchased by defendant, who had himself been living on the premises for seventeen years when the case was tried in the court below.

Though the playhouse had originally been made use of by defendant's children and the others in the neighborhood, there was evidence to show that it had been allowed to get in such a dilapidated condition that it was no longer safe, with the result that defendant had finally nailed up the door to keep the children out. As the timbers became rotten, most of the boards on Dr. Spivy's side had fallen off, and had been picked up by him and thrown back inside the playhouse.

Plaintiff, Walter Hill, who did odd jobs around the neighborhood, had for many years been employed by Dr. Spivy with more or less regularity to work around his premises, and was so engaged on May 22, 1936, when defendant is alleged to have assaulted and injured him.

Having unavailingly requested defendant to remove the playhouse from the areaway, it would seem that Dr. Spivy finally resolved to take the matter into his own hands, and to that end went out into the back yard where plaintiff and another colored fellow were at work and directed them to tear the playhouse down. Taking an ax which was brought up from the basement, plaintiff struck one of the posts supporting the playhouse, whereupon the entire structure collapsed and toppled over upon the walk alongside Dr. Spivy's wall.

Dr. Spivy then directed the men to move the debris back upon defendant's property, and while plaintiff was stooping over picking up pieces of lumber, defendant came running out of his house with a broom and struck plaintiff a terrific blow across the small of his back with the handle, knocking him flat upon his face. As plaintiff started to arise, defendant struck him a second blow across the head, and then pursued him, as he attempted to run away, and struck him a third blow across the shoulders. At this juncture defendant went back into his house; and whether he afterwards came to the window and threatened plaintiff and Dr. Spivy with a revolver was a question upon which the parties were in disaccord.

With respect to the question of the location of the parties when the assault occurred, plaintiff himself testified that he was standing on the concrete walk when he was struck by defendant, while other of his evidence, as well as that of defendant, was that he was over on defendant's property, at least when the first two blows were struck. There was also an issue of fact in the case with respect to defendant's provocation for the assault. Defendant testified that as he approached plaintiff, the latter "came up" in an attitude as though he was going to strike defendant with his ax, while plaintiff and his witnesses not only denied any such demonstration or display on his part, but in fact denied that he at any time had the ax in his hand after the playhouse had fallen over upon the walk and he had undertaken the task of moving the wreckage back upon defendant's property.

In his amended petition plaintiff counted upon the theory that while he was working in the side yard or areaway between the premises of Dr. Spivy and those of defendant, the latter wantonly, maliciously, and without just cause or reason beat him across the back with the broom, and thereafter threatened to shoot him with a revolver.

In his answer, afer denying both generally and specifically that he had assaulted plaintiff in Dr. Spivy's back yard (as had been alleged in plaintiff's original petition), defendant then charged that plaintiff had come upon his premises without right and against his will, and was there engaged in the destruction of property belonging to defendant; that defendant had requested and demanded that plaintiff cease the destruction of his property and leave his premises, but that plaintiff had wrongfully refused to do so; that thereupon defendant approached plaintiff, who was armed with an ax, and that plaintiff then and there assaulted defendant, and would have beaten and injured him had not defendant defended himself; that defendant did thereupon defend both himself and his property, as he was lawfully entitled to do, and in so doing did necessarily and unavoidably strike plaintiff in the necessary defense of his own person and his own property, but that no more force or means were employed than were necessary to repel plaintiff's assault upon defendant's person and plaintiff's attack upon defendant's property; and that if plaintiff sustained any damage thereby, the same was occasioned by his own act in first assaulting defendant and attacking and destroying defendant's property.

For his first point defendant contends that the court erred in giving plaintiff's principal instruction No. 1, which was as follows:

"The Court instructs the jury that if you believe and find from the evidence that * * * plaintiff was working in the side yard or the areaway of premises between one Dr. Raymond M. Spivy and the defendant's, * * * and that while so working the defendant maliciously and without just cause or reason beat plaintiff across the back with a broom, and that thereby plaintiff sustained physical injuries mentioned in the evidence, and that plaintiff did not strike or injure the defendant, or attempt to strike or injure the defendant, then your verdict must be for the plaintiff and against the defendant.

"By the term `maliciously' as used in this instruction is not meant spite or ill will, but the intentional doing of a wrongful act without just cause or excuse."

Defendant's complaint about the instruction is that it constituted a misdirection to the jury, in that it made a verdict for plaintiff conditional, among other things, upon a negative finding with respect to one of the pleaded defenses, that is, that defendant had struck plaintiff in self-defense, but omitted any requirement for such a finding with respect to the other pleaded defense, which was based upon the right of defendant to have used reasonable and necessary force to protect his property against plaintiff's attempted destruction of it.

It is to be observed that while defendant, as the basis for his claim of misdirection, invokes the rules which pertain to the submission of affirmative defenses, he makes no pretense that his particular defenses fell within that category, as indeed they did not, having been calculated instead to rebut the very essence of plaintiff's cause of action, which was that defendant had beaten plaintiff "maliciously and without just cause or reason." However he treats the situation as being none the less prejudicial as respects the question of whether plaintiff's instruction actually constituted a misdirection to the jury in so far as it omitted any reference to the defense that his striking plaintiff was but the employment of the force necessary to eject plaintiff from his premises, where plaintiff was engaged in the attempted destruction of his property. In other words, it is his contention that the direction of the instruction that the jury should return a verdict for plaintiff if they merely found, so far as defensive matters were concerned, that defendant had not acted in self-defense was the equivalent of telling them that they...