O'Leary v. Rowan

• Decision Date: 31 October 1860
• Citation: 31 Mo. 117
• Parties: O'LEARY, Respondent, v. ROWAN, Appellant.
• Court: Missouri Supreme Court

31 Mo. 117

O'LEARY, Respondent,

v.ROWAN, Appellant.

Supreme Court of Missouri.

October Term, 1860.

1. In an action to recover damages for an assault and battery, where the petition is general, containing no allegation of any special damage, the plaintiff may give evidence of any damages naturally and necessarily resulting from the act complained of; where the damage is consequential, it must be specially set forth in the petition. The plaintiff could not recover a doctor's bill, incurred in consequence of the battery, unless such resulting damages were specially set forth.

2. To justify an assault on the ground that it was made in repelling an attack, it must appear that the force used was necessary to repel such attack and was appropriate in kind and suitable in degree.

Appeal from St. François Circuit Court.

This was an action for an assault and battery. The petition charges that the defendant on the 6th of May, 1858, assaulted and beat plaintiff with a rock, and assaulted and cut plaintiff with a knife, and inflicted divers wounds and bruises with said rock and knife in and upon the head, arms and side of plaintiff, by which plaintiff was damaged five hundred dollars. The defendant's answer was a general denial of all the allegations of the petition.

The court, of its own motion, instructed the jury as follows: “1. If the jury find that the defendant wantonly and without sufficient cause committed the assault and battery on the plaintiff, they will find for the plaintiff such damages as, under all the circumstances, they may think proper; and in estimating the damages they may take into consideration the pain, sufferings, mental anguish and wounded feelings of the plaintiff in consequence of such assault. 2. If the jury find that the defendant committed the assault and battery complained of, the plaintiff is entitled to his verdict, unless defendant, by evidence on his part, or from the evidence introduced by the plaintiff, has shown and satisfied the jury that the assault was made by the defendant in self-defence or in lawfully repelling the attack made upon him by the plaintiff. 3. If from the evidence in the cause the jury find that the attack was first made on the defendant by the plaintiff, and that in resisting the attack the defendant used no more force than was necessary to repel it, and place himself out of danger, they will find their verdict for the defendant.”

The court refused the following instructions asked by defendant: “1. If the jury find from the evidence that the plaintiff assaulted the defendant, and that the injury inflicted upon the plaintiff was done by defendant in defending himself against such assault, then the plaintiff is not entitled to recover, and in such case the burden of proof devolves upon the plaintiff to show that the defendant made the first assault. 2. If the jury find from the evidence that the assault of the defendant upon the plaintiff was sought for and brought on by the plaintiff himself, then he is not entitled to recover, and in such case the jury will find for the defendant. 3. Unless the jury find from the evidence that the wounds inflicted upon the plaintiff was done by defendant maliciously and without any sufficient cause or provocation, they can not find [[[[[exemplary] damages from the circumstances of the case in this proceeding.”

Carter, for appellant.

I. The court erred in overruling the defendant's application for a change of venue; so in overruling the motion for a continuance; also in refusing the instructions asked by the defendant. The second instruction...