McKee v. Calvert

• Decision Date: 31 October 1883
• Citation: 80 Mo. 348
• Parties: MCKEE v. CALVERT et al., Appellants.
• Court: Missouri Supreme Court

80 Mo. 348

MCKEE

v.CALVERT et al., Appellants.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Clark Circuit Court.--HON. ANDREW ELLISON, Judge.

AFFIRMED.

Matlock & Hiller and Berkheimer for appellants.

The petition does not allege that the assault was committed in a wanton, malicious, rude and aggravated manner, or dictated by a deliberate intention to vex, degrade and insult plaintiff. Green v. Craig, 47 Mo. 90. And there was no evidence that the assault was committed in such manner and with such intention, and the court should not have instructed for exemplary damages, plaintiff only being entitled to actual damages. Sedgwick on Dam., (4 Ed.) pp. 32, 610; Plummer v. Hurburt, 5 Clark (Iowa) 308; Buckley v. Knapp, 48 Mo. 153, and cases cited; Milburn v. Beach, 14 Mo. 104; Graham v. Railroad Co., 66 Mo. 536; Engle v. Jones, 57 Mo. 316.

D. H. McIntyre and F. M. Brown for respondent.

Neither the motion for new trial nor that in arrest of judgment, is incorporated in the bill of exceptions. This court, therefore, will not notice any of the alleged errors occurring at the trial. Collins v. Barding, 65 Mo. 496; Jefferson City v. Opel, 67 Mo. 394; Robinson v. Hood, 67 Mo. 660. The petition properly states a cause of action. O'Leary v. Rowan. 31 Mo. 117; 2 Estee's Plead., pp. 1, 4.

PHILIPS, C.

This is an action for damages for an assault and battery. Verdict and judgment for plaintiff for the sum of $250. Defendant has brought the case here on appeal. Neither the motion for new trial nor in arrest are preserved in the bill of exceptions, and therefore no alleged errors committed in the progress of the trial can be considered or reviewed by this court. Collins v. Barding, 65 Mo. 496; Jefferson City v. Opel, 67 Mo. 394; Robinson v. Hood, 67 Mo. 660; State ex rel. Estes v. Gaither, 77 Mo. 304. On this record no errors are reviewable save such as are apparent in what is known as the record proper.

It is objected to the petition that it does not state facts sufficient to constitute a cause of action. It charges that on the 13th day of February, 1880, at the county of Clark, State of Missouri, with force and arms, the defendant assaulted, beat and bruised, cut and wounded the plaintiff, by reason of which he sustained damage in the sum of $1,000, for which he prayed judgment. For further cause of action it is alleged that on the day and place aforesaid, the defendants did unlawfully, with their fists, sticks, knives, and other sharp instruments, assault, beat, and bruise and wound plaintiff, and other wrongs and injuries to plaintiff then and there did, by reason of which he had sustained damages in the sum of $1,000, for which judgment is prayed.

The only tangible objection to the petition occurring to us is, that it is not affirmatively averred in the...