Jennings v. Appleman

• Decision Date: 15 July 1911
• Citation: 139 S.W. 817,159 Mo. App. 12
• Parties: JENNINGS v. APPLEMAN.
• Court: Missouri Court of Appeals

139 S.W. 817

159 Mo. A. 12

JENNINGS v. APPLEMAN.

St. Louis Court of Appeals. Missouri.

July 15, 1911.

Rehearing Denied September 30, 1911.

1. APPEAL AND ERROR (§ 1053) — HARMLESS ERROR.

Defendant cannot claim a reversal because of evidence offered to inflame the feelings of the jury as contended by him, where an objection was sustained thereto, and it was ordered stricken from the record.

2. DAMAGES (§ 215) — INSTRUCTIONS — PUNITIVE DAMAGES — WILLFULLY.

In an action for assault, in which it appeared that plaintiff was knocked down with a club and severely beaten by defendant, an instruction that, if the jury found that the injuries were "willfully" inflicted, they might assess as punitive damages a further sum, which would be a warning to defendant, was not objectionable for not requiring a finding of express malice before awarding punitive damages; the word "willfully" implying that the battery was intentional.

3. ASSAULT AND BATTERY (§ 28) — ACTION — ADMISSION — EPITHETS.

In an action for damages for an assault committed after defendant had paid plaintiff to procure a release of hogs impounded, evidence of epithets used by defendant concerning plaintiff the day before the battery, while he was seeking advice as to recovering possession of the hogs, was admissible to show defendant's state of mind.

4. APPEAL AND ERROR (§ 1066) — HARMLESS ERROR — INSTRUCTIONS ON DAMAGES.

In an action for damages for an assault, in which plaintiff testified generally that he was a farmer, and had to work for a living, it was not reversible error to submit loss of time as an element of plaintiff's damage, though the value of his time was not directly proved, since a jury could allow the reasonable value of his time from the circumstances in evidence, especially where defendant did not request an instruction limiting such damages to nominal damages.

Appeal from Circuit Court, Audrain County; J. D. Barnett, Judge.

Action by Frank Jennings against Bell J. Appleman. From a judgment for plaintiff, defendant appeals. Affirmed.

Robertson & Robertson, for appellant. Arthur Bruton, Frank G. Harris, and Barclay, Fauntleroy & Cullen, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of an assault and battery inflicted upon him by defendant. Plaintiff recovered, and defendant prosecutes the appeal.

Both plaintiff and defendant are farmers, who reside on adjoining estates. Defendant's hogs trespassed several times upon plaintiff's growing corn in the field, and finally plaintiff put up the hogs, and detained them for the damages done. Defendant became angered at this, passed plaintiff's house in the morning, and threatened to sue him, etc., used vile language when discussing the matter, and said he would go to town and institute legal proceedings, to the end of recovering his hogs forthwith. It appears that defendant advised with the justice of the peace and a lawyer, and finally concluded to pay the damages. After returning from town in the evening, defendant, in company with his son and two hired hands, came to plaintiff's home for the purpose of paying the damage and getting the hogs. The damage was agreed upon, and defendant paid it, but it appears he became abusive toward plaintiff immediately thereafter. The evidence for plaintiff tends to prove that after the claim for the damage by the hogs was settled, and the hogs turned out of the barn, defendant then commenced to curse and abuse him, etc., called him vile names, and said he would break his head if he ever put up his hogs again, etc. While defendant was so conducting himself, plaintiff ordered him to leave the premises immediately, and picked up a club from the ground. Defendant thereupon "squared around" toward plaintiff, put his hand in his pocket, and advanced toward plaintiff, who was about 15 paces away. Plaintiff advanced toward defendant, too, with the club in his hand, and continued to command him to leave the premises. Defendant was in great anger, and approached plaintiff, uttering vile oaths. When the parties came near each other, each struck at the other, but defendant took the club from plaintiff, and it is said not only felled him to the ground, but beat him with great force and violence. Indeed, the proof is that after defendant had knocked plaintiff down he continued the battery with such force and violence as to render plaintiff unconscious for as much as 10 minutes. As a result of the beating plaintiff received a broken nose, a large gash on his forehead, besides a large knot on his face. Plaintiff's injuries were such as to entirely disable him from attending to his duties on the farm from the 15th of September until the following June.

For defendant, the evidence tends to prove that, though he thus unmercifully pommeled plaintiff, he did so in self-defense. Defendant insists that he was in the act of leaving plaintiff's premises in a peaceable manner when plaintiff followed and assaulted him with a club. Plaintiff's son gave evidence to the effect that, while his father was prostrate on the ground, his mother came running from the house, demanding defendant to desist and leave the place, and that defendant applied an ugly and vicious...