Johnson v. Daily

• Decision Date: 19 April 1909
• Citation: 118 S.W. 530,136 Mo. App. 534
• Parties: JOHNSON v. DAILY.
• Court: Missouri Court of Appeals

118 S.W. 530

136 Mo. App. 534

JOHNSON v. DAILY.

Kansas City Court of Appeals. Missouri.

April 19, 1909.

1. ASSAULT AND BATTERY (§ 43)—CIVIL ACTION—CONFLICTING INSTRUCTIONS.

There is not such conflict between instructions as to mislead the jury; one given for plaintiff declaring that if defendant willfully beat him he can recover unless he first attacked defendant, and such attack was resisted with no more force than necessary, and the other given for defendant being in keeping with his defense that, though he may have assaulted plaintiff, he had a right to make such assault if the appearances justified him in judging from plaintiff's actions that plaintiff was about to inflict great bodily harm on him.

2. ASSAULT AND BATTERY (§ 26)—JUSTIFICATION —BURDEN OF PROOF.

Plaintiff having shown an assault on him, it is presumed to have been unlawful, and defendant has the burden of justifying it.

3. ASSAULT AND BATTERY (§ 38)—DAMAGES.

As part of the damages for assault and battery plaintiff may recover for any humiliation and disgrace shown by the evidence to have been suffered by him because thereof.

4. ASSAULT AND BATTERY (§ 13)—INSTRUCTIONS — SELF-DEFENSE—PROVOKING DIFFICULTY.

Reasonable inferences to be drawn from the evidence justifying it, an instruction submitting the hypothesis of defendant having brought on and provoked the difficulty, in which case defendant could not rely on self-defense, is properly given in an action for assault and battery.

5. TRIAL (§ 260) — INSTRUCTIONS — REPETITION.

One may not complain of refusal of an instruction substantially embodied in another given.

Appeal from Circuit Court, Harrison County; G. W. Wanamaker, Judge.

Action by John R. Daily against William Johnson. Judgment for plaintiff. Defendant appeals. Affirmed.

J. M. Sallee and S. P. Davisson, for appellant. Barlow & Barlow, J. C. Wilson, and W. H. Leazenby, for respondent.

ELLISON, J.

This is an action for assault and battery in which plaintiff obtained judgment in the trial court. The evidence showed much ill feeling between the parties had existed for a considerable period. They were relatives and neighbors residing in the country in Harrison county. Finally they met in the public road. Defendant in his buggy passed plaintiff who was walking in the road. The buggy wheel brushed against plaintiff and thus started a fight between them, resulting in defendant committing the assault with a hammer. Who was the aggressor was a matter of dispute between the parties. As to whether there was any occasion for self-defense on defendant's part was likewise a matter of dispute. Indeed, such was the state of contradictory evidence in the cause, we need not go into any detailed statement of it, since it was all submitted to the jury, who found in plaintiff's favor, and since we must abide by that finding it is only cumbering the record to set forth what the evidence was upon which the jury acted.

We will therefore address ourselves to the criticism made of the instructions. One was given for plaintiff wherein it was declared that, if defendant violently and willfully beat and wounded the plaintiff, then the verdict should be for him unless plaintiff first made an attack on defendant and that he resisted such attack by using no more force to repel it than was necessary. Defendant claims that instruction to be in conflict with No. 2 given at his request, wherein the jury were told that if they believed the defendant apprehended that plaintiff was about to do him some great bodily harm, and that there was reasonable cause for believing the danger was imminent, and that such danger was about to fall upon him, then he had a right to act on appearances and to use such force as seemed necessary to avoid the danger, and he was not required to nicely gauge the...