Joice v. Branson
| Decision Date | 31 October 1880 |
| Citation | 73 Mo. 28 |
| Parties | JOICE v. BRANSON, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Phelps Circuit Court.--HON. V. B. HILL, Judge.
REVERSED.
L. F. Parker for appellant.
Action for damages alleged to have been caused by an assault and battery on plaintiff, Nicey L. Joice, the wife of her co-plaintiff, Wm. Joice. It was alleged that an abortion resulted from the injury caused by the battery. The answer was a general denial.
The husband was properly joined with the wife as coplaintiff, and this because the statute requires it. R. S. 1879, § 3468; Edmonson v. Phillips, decided present term. The wife was, however, the substantial party to the suit, and was competent as a witness in her own behalf. Harriman v. Stowe, 57 Mo. 93; Owen v. Brockschmidt, 54 Mo. 285; Evers v. Life Association, 59 Mo. 429. The husband was, however, clearly incompetent as a witness, and error was committed in permitting him to testify. In circumstances like those presented in the case at bar, the statute has not modified the common law. Paul v. Leavitt, 53 Mo. 595.
As the case must be retried for the error just mentioned, it is unnecessary to consider in detail the other errors assigned, except, perhaps, to say this, that we regard evidence of the circumstances in which the alleged injury occurred as admissible either in aggravation or else mitigation of damages; not, indeed, to excuse the defendant from making full compensation for any actual injury he has inflicted, but for the purpose of showing either that circumstances of malice, gross outrage, oppression or insult accompanied or did not accompany, the act complained of. If the defendant was actuated by no malicious motives, and his act was not attended by any of the circumstances just mentioned, compensatory damages only would be recoverable. Field on Damages, §§ 23, 25, 26, 69, 70, 71, 116; Cooley on Torts, 692, 694; 2 Greenleaf Ev., §§ 270, 272. If damages of that class alone are asked the motive of the defendant is wholly immaterial, and can have no bearing on the amount of the recovery. The judgment is reversed and the cause remanded.
All concur.
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O'Bryan v. Allen
... ... Thomson was not a competent witness. Dunifer v ... Jecko, 87 Mo. 282; Bell v. Railroad, 86 Mo ... 599; Wood v. Broadley, 76 Mo. 23; Joice v ... Branson, 73 Mo. 28; Haerle v. Krehin, 65 Mo ... 202; Paul v. Leavitt, 53 Mo. 595. (3) The petitions ... in partition were competent ... ...
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Sehr v. Lindemann
...testimony of Joseph Schnieders was properly excluded because he was the husband of one of the plaintiffs. R. S. 1889, sec. 8922; Joice v. Branson, 73 Mo. 28; Paul Leavitt, 53 Mo. 595; Wood v. Broadley, 76 Mo. 23; Callahan v. Billat, 68 Mo.App. 435. OPINION MARSHALL, J. The statement of this......
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Bond v. Williams
... ... mitigation of such damages, though such evidence is ... inadmissible in mitigation of actual damages. [Joice v ... Branson, 73 Mo. 28; Gray v. McDonald, 104 Mo ... 303, 16 S.W. 398.] In order, however, that evidence of ... provocation, such as abusive ... ...
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Womach v. City of St. Joseph
...by defendant? No. Was he not denied by the law the right (had he invoked the right) to testify in his wife's cause? Certainly so. Joice v. Branson, 73 Mo. 28; Harrington v. Sedalia, 98 Mo. 583, 12 S. W. 342. By what recognized test of reason or authority, then, and under what principle of l......