Knoche v. Knoche

• Decision Date: 09 January 1912
• Parties: KNOCHE v. KNOCHE.
• Court: Missouri Court of Appeals

142 S.W. 766

160 Mo. App. 257

KNOCHE v. KNOCHE.

Kansas City Court of Appeals. Missouri.

January 9, 1912.

1. ASSAULT AND BATTERY (§ 35)—EVIDENCE —SUFFICIENCY.

In an action for an assault, evidence held to show that the injury complained of was caused by a blow struck by defendant.

2. TRIAL (§ 140) — QUESTION FOR JURY — CREDIBILITY OF WITNESSES.

Where, in an action for an assault, the evidence was conflicting as to whether the plaintiff was afflicted with hysterical fits which would affect the credibility of her testimony, the jury were entitled to determine the question.

3. TRIAL (§ 140) — QUESTION FOR JURY — CREDIBILITY OF WITNESSES.

In an action for an assault, in which the veracity of plaintiff's story was attacked and defended by character witnesses, the jury were the proper judges of the reasonableness and truth of her version.

4. DAMAGES (§ 161)—NECESSITY OF ALLEGING—HUMILIATION.

In an action for an assault, humiliation is an element of general, rather than special, damage, and may be assessed though not specifically alleged.

5. DAMAGES (§ 216)—ASSESSMENT—INSTRUCTION.

In an action for assault, an instruction may state the maximum damages the jury may allow.

6. APPEAL AND ERROR (§ 1068)—REVIEW—HARMLESS ERROR—INSTRUCTIONS.

Error in an instruction as to exemplary damage is harmless, where the jury allowed only compensatory damages.

7. APPEAL AND ERROR (§ 204)—RESERVATION OF GROUNDS—OBJECTIONS TO EVIDENCE.

A court on appeal will not consider an objection to evidence where not made and preserved in the trial court.

8. EVIDENCE (§ 122)—RES GESTÆ.

In an action for an assault, testimony by the plaintiff that the defendant slapped his wife, when she came into the room during an altercation preceding the assault, is admissible as part of the res gestæ.

9. TRIAL (§ 121)—ARGUMENT OF ATTORNEY.

Where, in an action for an assault, testimony of the plaintiff that at the time of the assault, and while the defendant was abusing her, he slapped his wife, who entered the room, was contradicted by the wife, plaintiff's counsel was entitled to discuss the testimony of the

wife and attack its credibility on the ground that she was under duress.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Action by Laura Knoche against John H. Knoche. From a judgment for plaintiff, defendant appeals. Affirmed.

McCune, Harding, Brown & Murphy, for appellant. Moore & Creel and Rees Turpin, for respondent.

JOHNSON, J.

Plaintiff sued for $10,000 actual and $15,000 exemplary damages for an alleged assault committed upon her by defendant. The petition alleges that on or about the 7th day of July, 1909, "defendant wantonly, maliciously, and without just cause, reason, or provocation, assaulted and beat plaintiff with his fists, whereby plaintiff was bruised and maimed about her head and body, her left ear severely and permanently injured, and the hearing thereof greatly impaired; that by reason of said injuries plaintiff received a severe nervous shock; that the said beating has caused plaintiff great bodily pain and mental anguish and will in the future cause plaintiff great physical pain and mental anguish," etc. The answer is a general denial. A trial to a jury resulted in a verdict and judgment for plaintiff for actual damages in the sum of $875, and, after unsuccessfully moving for a new trial, defendant appealed.

Defendant is a well-to-do farmer living near Martin City, and plaintiff is a married woman, separated from her husband, who is a nephew of defendant. Plaintiff supported herself and her small child by doing domestic labor for others and was employed by defendant to do that kind of labor during an illness of his wife. After the termination of the service, defendant sent plaintiff a check in payment of her wages, and plaintiff complained that the compensation was too small. At defendant's suggestion she went to his home to adjust the difference. Defendant was out hunting with some of his children, and on his return he and plaintiff discussed the subject of her demand, and, according to the evidence of plaintiff, defendant became angry, cursed and abused her, and finally cuffed her on each side of her head with his clenched fist or open hand.

Counsel for defendant argue that plaintiff's testimony is so improbable that we should reject it as wholly devoid of probative value, but we do not so regard it. After the assault, plaintiff went to a neighbor's house and stayed all night there. She was crying, excited, and flushed...