Klingman v. Holmes

• Decision Date: 31 October 1873
• Citation: 54 Mo. 304
• Parties: JACOB KLINGMAN, Respondent, v. PARKER HOLMES, Appellant.
• Court: Missouri Supreme Court

54 Mo. 304

JACOB KLINGMAN, Respondent,

v.PARKER HOLMES, Appellant.

Supreme Court of Missouri.

October Term, 1873.

Appeal from Adair Circuit Court.

Barrow & Millan, and Ellison & Ellison, for Appellant.

I. This is a suit by the father for an assault on his son. The foundation of the action is that the party assaulted was the servant of the plaintiff. Exemplary damages are not allowed in such a case. (Cowden vs. Wright, 24 Wend., 429; Whitney vs. Hitchcock, 4 Den., 461; Pack vs. Mayor of New York, 3 Coms., 489; Castanos vs. Ritter, 3 Duer, 370; Gilligan vs. N. Y. & H. R. R., 1 E. D. Smith, 453; Oakland R. R. Co. vs. Fielding, 48 Penn. St., 320; 38 Maine, 277; Richards vs. Farnham, 13 Pick., 451; Penn. R. R. Co. vs. Kelly, 31 Penn. St., 372; Same vs. Zebe, 33 Penn. St., 318; Sedg. Dam., side p. 554 [5 Ed.]; 9 Bacon Abd., 457.)

Harrington & Cover, for Respondent.

I. The jury could give exemplary damages. (James vs. Christy, 18 Mo., 162; Magee vs. Holland, 3 Dutch., 86.)

II. This court has laid down the rule, that in all actions of tort exemplary damages are allowed. (Buckley vs. Knapp, 48 Mo., 152; Freidenheit vs. Edmundson, 36 Mo., 226; Franz vs. Hilterbrand, 45 Mo., 121; Gœtz vs. Ambs, 27 Mo., 28.)

WAGNER, Judge, delivered the opinion of the court.

The plaintiff brought his action against the defendant for an assault and battery committed upon his son.

The case was clearly proved, and the evidence shows that the defendant followed the son for a considerable distance and beat him cruelly and mercilessly.

The only question of any importance, presented for our consideration, is the action of the court in giving the fifth instruction for the plaintiff, which told the jury, that, if they found for the plaintiff, they should allow such damages as would compensate him for his loss of time and for any damage he might have suffered, permanent or otherwise, and for the time and trouble in taking care of his son, and in addition thereto they might allow such farther sum for exemplary damages or smart money, as they might believe that the circumstances and facts in evidence warranted.

It is now insisted in the argument, that in an action for assault and battery on the child, the parent's ground of action being the loss of service, the measure of damages is the actual loss which the parent has sustained, but that exemplary or vindictive damages cannot be recovered. That these last are only given to the injured child if he brings his action in his own name. This position is not without authority to support it. The courts of New York hold, that in trespass for an assault and battery upon a child or servant of the plaintiff, the measure of damages is the actual loss which the plaintiff has sustained, and that exemplary damages cannot be given. (Cowden vs. Wright, 24 Wend., 429; Whitney vs. Hitchcock, 4 Denio, 461.)

Mr. Sedgwick quotes these cases, as establishing the rule contended for, but he is evidently dissatisfied with their reasoning. (Sedg. Dam., [3 Ed.] 586-7.)

They proceed upon the theory, that the loss of service is the gist or legal gravamen of the action, and that the necessary expenses, that flow from, and are incident to, it, can only be taken into the account in determining the amount of damages.

They draw a distinction between actions of this kind and those for seduction, where the person seduced is incompetent to sue. It is perfectly true, the action for seduction is founded on the relation of master and servant, and not upon that of parent and child, and has always been maintained, not upon the seduction itself, but upon the consequent loss of the daughter's service, in which the parent is supposed to have a legal interest. But it is well settled, that the loss of service is not the real measure of damages in such cases. It is simply a legal fiction resorted to, for the purpose of giving compensation for a great injury. And it must be farther borne in mind, that in actions of seduction the daughter is a partaker of the crime, and therefore cannot sue her seducer. But the cases, holding that the loss of service is necessarily the foundation of the action, are not decisive, and controlling the question in reference to assault and battery, for there are very respectable authorities deciding that the action will lie on the part of the parent, where the child was incapable of rendering any service.

In Dennis vs. Clark, 2 Cush., 347, it is expressly decided, that, where an infant child, too young to be capable of rendering any service to his father, is injured by a third person under such circumstances as would give the infant himself an action against such third person, and the father is put to care and expense in consequence thereof, he may maintain an action for an indemnity.

So in Durden vs. Barnett, 7 Ala., 169, it was held, that the action would lie, and the court said, “even if the child was of very tender years, so as to be incapable of rendering any useful services, the action would doubtless lie, if averments were made of consequential injury by expenses caused in healing the wounds.” According to these authorities services are not the...