Lutzenberger v. Dent, 4793.

• Decision Date: 25 September 1930
• Docket Number: No. 4793.,4793.
• Parties: LUTZENBERGER v. DENT.
• Court: Missouri Court of Appeals

31 S.W.2d 394

LUTZENBERGER v. DENT.

No. 4793.

Springfield Court of Appeals. Missouri.

September 25, 1930.

Appeal from Circuit Court, Dent County; J. H. Bowron, Judge.

Action by Billie Lutzenberger, an infant, by his next friend, Roberta B. Frew, against Louis Dent, Jr. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

E. W. Bennett and George F. Addison, both of Salem, and Lorts & Breuer, of Rolla, for appellant.

William P. Elmer, of Salem, and Harry Clymer, of Steelville, for respondent.

SMITH, J.

Plaintiff, an infant, by next friend, sued the defendant, a minor, for damages occasioned by an assault and battery, and alleged he was injured by having a jawbone broken and some teeth knocked out by several blows of the defendant, which blows caused other teeth to become loose and of no value to the plaintiff, and that the defendant knocked the plaintiff down and beat and kicked the plaintiff in and about the body and face after knocking him down, all of which caused a general injury to the nervous system of the plaintiff; and that the plaintiff was under care of physicians for a long period of time, and was compelled to spend sums of money for medical services and treatment. For all of which injuries the plaintiff sought judgment in the sum of $5,000 actual damages and $5,000 as exemplary damages.

George F. Addison was appointed guardian ad litem for the defendant and filed an answer admitting that the defendant struck the plaintiff with his fist, and denied each and every other allegation in the petition, and denied that the plaintiff received permanent injuries at the hands of the defendant or that the defendant beat and kicked the plaintiff in and about the body and face after knocking him down. The answer also contained this statement:

"Further answering, the defendant says that at the time of the altercation between plaintiff and defendant they were both students of the high school in the City of Salem, and were and for a long time prior thereto had been, friends of each other, and that while defendant was engaged in his work as a student, the plaintiff undertook to and did annoy and hinder him in his studies and refused to allow the defendant to do his work as a student in said school, and after request was made by defendant to plaintiff to allow him to proceed with his duties in the preparation and work as a student, and after which request was ignored by the plaintiff, they both willingly and mutually engaged in a fight, from which the plaintiff received the injuries, if any, complained of, and defendant further says that if it be true that the plaintiff was injured, it was the result of his own annoyance and conduct toward defendant, and by his own invitation for an altercation with defendant, and while he was trying to inflict bodily harm and injuries upon this defendant."

The reply denied each and every allegation contained in the answer.

On August 22, 1929, the cause was tried, and the verdict of the jury was for the plaintiff, assessing his actual damages...