Hogsett v. Smith, 21316
| Decision Date | 06 March 1950 |
| Docket Number | No. 21316,21316 |
| Citation | 229 S.W.2d 20 |
| Parties | HOGSETT v. SMITH. |
| Court | Missouri Court of Appeals |
J. B. Journey, Nevada, for appellant.
William T. McCaffree, Nevada, C. Myrl McGlothlin, Nevada, for respondent.
BOUR, Commissioner.
This is an action to recover damages for assault and battery. The verdict and judgment were in defendant's favor. Motion for a new trial was overruled, and plaintiff has appealed.
Plaintiff testified that on April 24, 1948, he was walking on the sidewalk across the street from the courthouse in the City of Nevada, and continued: 'I started across to the courthouse, and I paused there on the north side of the street, and I never saw Mr. Smith at the time I paused, and I heard him mumbling something, and the wind was blowing awful hard, and I just stuck my head over a little closer to hear what he was saying, and he hit me, * * * he hit me right in the mouth, * * * he knocked me back six or seven feet, and I just passed out pretty near, dazed me, * * * it injured my neck.' While plaintiff was being cross-examined by defendant's counsel, the following occurred: Plaintiff called several witnesses, including a doctor of chiropractic, to prove the nature and extent of his alleged personal injuries.
The defendant did not testify. The only witness called by defendant was the sheriff who testified on direct examination that he was on the north side of the square on the afternoon in question; that he did not see defendant strike plaintiff, but that he did see plaintiff that afternoon, and Defendant's purpose in offering this testimony is not apparent. Defendant also introduced in evidence a letter written by plaintiff to defendant, dated February 3, 1948, which will be referred to below.
Plaintiff contends that the verdict was against the weight of the evidence, and that there was not a scintilla of evidence upon which the jury could base a verdict for defendant. As to the first contention, this court has no authority to pass upon the weight of the evidence. The jury did not have to find for the plaintiff merely because his testimony was uncontradicted. The general rule is that when either party submits oral testimony to sustain his burden of proof, the other party, though offering no evidence to contradict it, is entitled to have the jury determine the credibility of the witnesses and the weight to be given to their testimony. The court has no right to instruct the jury that it must believe the witnesses. If, in such a case, the jury returns a verdict in favor of the party not having the burden of proof, it is within the exclusive province of the trial court to determine whether or not a new trial should be granted on the ground that the verdict was against the weight of the evidence. This court has no authority to interfere with the trial court's ruling. Wiener v. Mutual Life Ins. Co. of New York, 352 Mo. 673, 680, 179 S.W.2d 39, 43; Giles v. Moundridge Milling Co., 351 Mo. 568, 571, 173 S.W.2d 745, 747; Woehler v. City of St. Louis, 342 Mo. 237, 239, 114 S.W.2d 985, 986; Connole v. East St. Louis & Suburban R. Co., 340 Mo. 690, 699, 102 S.W.2d 581, 586; Gannon v. Laclede Gas Light Co., 145 Mo. 502, 46 S.W. 968, 47 S.W. 907, 43 L.R.A. 505. Where, however, the opponent, that is the party not having the burden of proof, admits either in his pleadings or by counsel in open court facts upon which the claim of the proponent rests, the judicial admission not only relieves the proponent from adducing evidence to prove such facts, but bars the opponent himself from disputing them. Wild v. Pitcairn, 347 Mo. 915, 926, 149 S.W.2d 800, 805; State ex rel. St. Louis Basket & Box Co. v. Reynolds, 284 Mo. 372, 383, 224 S.W. 401, 403; Pennington v. Kansas City Railways Co., 284 Mo. 1, 16, 223 S.W. 428, 431. Furthermore, such an admission allows the court to direct the jury to take the admitted facts as positively settled, and the proponent is entitled to have the jury so instructed. Coleman v. Jackson County, 349 Mo. 255, 261, 160 S.W.2d 691, 693; Evans v. Foreman, 60 Mo. 449, 453; Cantrell v. Knight, Mo.App., 72 S.W.2d 196, 198; Williams v. Williams, 132 Mo.App. 266, 111 S.W. 837.
In the instant case not only does plaintiff's testimony that the defendant assaulted him stand uncontradicted and unimpeached, but the defendant's counsel in open court admitted that defendant struck the plaintiff. The formal admission of defendant's counsel together with the conduct of the case at the trial, and statements and arguments in defendant's brief show that defendant's counsel conceded that defendant struck the plaintiff intentionally. Consequently, the plaintiff was entitled to have the jury instructed that its finding must be for the plaintiff on the question of whether there was an assault by defendant. Williams v. Williams, supra. Before discussing the instructions given at plaintiff's request, we will consider the contentions of the defendant.
Defendant's brief reads in part as follows: Defendant then quotes part of plaintiff's testimony on cross-examination and also refers to the letter written by plaintiff to defendant on February 3, 1948, more than two months before the assault. The conclusion which we have reached makes it unnecessary to set forth plaintiff's testimony on cross-examination or the contents of the letter. It is sufficient to say that the evidence does not show 'that there was sufficient cause or provocation' for the assault. There is no evidence in the record to show that defendant acted in self-defense. Provocation is not a defense in an action for assault and battery, although it may be shown in mitigation of punitive damages. Hodges v. Schuermann Building & Realty Co., Mo.App., 174 S.W.2d 909; Lawrence v. Womack, Mo.App., 23 S.W.2d 190; 4 Am.Jur. sec. 53, p. 154, sec. 164, p. 203. The plaintiff herein did not pray for punitive damages, and actual damages are not subject to mitigation by proof of mere provocation. See O'Shea v. Opp, 341 Mo. 1042, 111 S.W.2d 40. Furthermore, the evidence in question...
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Jenkins v. Wabash R. Co., s. 46233
...jury that these facts were to be accepted as admitted by the parties referred to. The correct general rule is stated in Hogsett v. Smith, Mo.App., 229 S.W.2d 20, 21, as follows: 'Where * * * the party not having the burden of proof, admits either in his pleadings or by counsel in open court......
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...104 Iowa 287, 73 N.W. 588, 590; Stark v. Epler, 59 Or. 262, 117 P. 276, 278; Anno., supra, 16 A.L.R. at 815, § IVe.4 Hogsett v. Smith, Mo.App., 229 S.W.2d 20, 22(5); Hodges v. Schuermann Building & Realty Co., supra, 174 S.W.2d at 913(1); Lawrence v. Womack, Mo.App., 23 S.W.2d 190, 192(2); ......
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...evidence to prove the fact, but bars the defendant from disputing it. Jenkins v. Wabash R. Co., Mo., 322 S.W.2d 788; Hogsett v. Smith, Mo.App., 229 S.W.2d 20, 21. Those authorities announce the same rule as to admissions made by defendant's counsel in open court. The incontestability of a f......
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...case is tried; and his opponent is entitled to have the jury instructed to take the admitted facts as positively settled. Hogsett v. Smith, Mo.App., 229 S.W.2d 20, 21. But it is equally true that a party's testimony on the stand may be of such a nature as to preclude him from disputing it. ......