McMillen v. Elder

• Decision Date: 07 November 1911
• Citation: 160 Mo. App. 399,140 S.W. 917
• Parties: McMILLEN v. ELDER.
• Court: Missouri Court of Appeals

140 S.W. 917

160 Mo. A. 399

McMILLEN v. ELDER.

St. Louis Court of Appeals. Missouri.

November 7, 1911.

1. APPEAL AND ERROR (§ 499) — RECORD — MATTERS TO BE SHOWN — OBJECTION — ADMISSION OF EVIDENCE.

Whether there was error in the admission of evidence, received, so far as the abstract shows, without objection, will not be considered on appeal.

2. DAMAGES (§ 91) — PUNITIVE DAMAGES — "MALICE."

"Malice" essential to justify punitive damages does not mean ill will against a person, but a wrongful act done intentionally and without just cause is done with malice.

3. ASSAULT AND BATTERY (§ 39) — DAMAGES — PUNITIVE DAMAGES.

To justify punitive damages for assault and battery, it is sufficient to show that the assault and battery was intentional and without just cause or excuse.

4. APPEAL AND ERROR (§ 930) — QUESTIONS REVIEWABLE — PRESUMPTIONS.

The court, in determining whether there was evidence justifying the punitive damages awarded, must assume that the jury accepted as true the evidence of plaintiff, where it was sufficient to convict defendant of intentionally doing a wrongful act.

5. DAMAGES (§ 181) — PUNITIVE DAMAGES — FINANCIAL CONDITION OF DEFENDANT — EVIDENCE.

Where punitive damages are recoverable, the financial condition of defendant may be proved.

6. TRIAL (§ 296) — INSTRUCTIONS — CONSTRUING INSTRUCTIONS TOGETHER.

Where the court at defendant's instance required the jury to find malice as a condition of allowing punitive damages, and at the instance of plaintiff correctly defined malice, an instruction, at plaintiff's instance, authorizing the jury to allow punitive damages by way of punishment for the doing willfully of an unlawful act, was not erroneous as authorizing punitive damages without finding malice.

7. TRIAL (§ 260) — INSTRUCTIONS — REFUSAL TO GIVE INSTRUCTIONS COVERED BY THE CHARGE GIVEN.

It is not error to refuse a requested charge fully and correctly covered in an instruction given at the instance of the party requesting the charge.

8. TRIAL (§ 258) — INSTRUCTIONS — REQUESTS — REQUISITES.

A requested charge on the burden of proof is properly refused, where the phrase is not defined in the requested charge or in any other charge given or refused.

9. ASSAULT AND BATTERY (§ 40) — EXCESSIVE DAMAGES.

Defendant, without any hostile demonstration from plaintiff, struck plaintiff twice in the head. The parties then clinched; but defendant, obtaining the most advantageous hold, pounded plaintiff in the side. Plaintiff's head was sore for a long time, and his side continued sore up to the time of the trial, and he had been unable to do any work as a farmer for at least two months. Physicians testified that he suffered a severe strain of the muscles of the back and had been treated by them two or three times a week for two months or more. Defendant was worth about $25,000. Held, that a verdict for $200 actual and $300 punitive damages was not excessive.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Action by James A. McMillen, Jr., against Samuel O. Elder. From a judgment for plaintiff, defendant appeals. Affirmed.

This suit was brought to recover damages for an assault and battery, which, according to the allegations of the petition, was willful, malicious, and unlawful. The prayer is for $1,000 actual and $1,000 punitive damages. The answer, in addition to a general denial, contained a plea of self-defense. The cause was tried and submitted to a jury under the instructions of the court, and the plaintiff had verdict and judgment for $200 actual and $300 punitive damages. The defendant has appealed and assigns error in the admission of testimony and in the giving and refusal of instructions.

The evidence discloses that the plaintiff, a farmer, had sued the defendant's son before a justice of the peace to recover the possession of a hog. That suit was tried in Louisiana, Mo., on August 23, 1909, and the trial was concluded about half past 12 o'clock in the afternoon. Plaintiff's brother-in-law, J. W. Brimer, was a witness for him before the justice, and defendant was a witness for his son. After the trial and about 2 o'clock in the afternoon, Brimer and Tom McMillen, an elder brother of the plaintiff, were sitting in the shade of a livery stable talking and joking, when defendant came there for his horse. He and Brimer then renewed a dispute which had begun in the morning concerning the correctness of Brimer's testimony before the justice. In the meantime plaintiff and a neighbor had been taking a stroll, with no special objective point, when they saw defendant and Brimer "fussing" over at the stable; the defendant shaking his clenched fist at Brimer. Plaintiff and his companion then walked on to the stable. When they arrived at the stable, defendant had been repeatedly calling Brimer a liar, and Brimer kept saying merely, "Hold on Sam!" As plaintiff came up and stopped, defendant said to Brimer, "You swore to a damn lie," and he looked at the plaintiff and called him a liar. Plaintiff then, without making any hostile demonstration, said in a good-natured way, addressing defendant, "Sam, you know you did say you would fix that fence," and defendant jumped around and struck him twice in the head. Plaintiff and defendant then clinched, with defendant having the most advantageous hold, and pounding plaintiff in the side. They were soon separated by a police officer. There was testimony on behalf of plaintiff that as a result of the affray his head was sore for a long time, and his side continued sore up to the time of the trial, and that he had been unable to do any work, his business being that of a farmer, for at least four months. Two physicians testified that he had suffered a severe strain of the muscles of the back and had been treated by them two or three times a week for two months or more. The testimony on behalf of the defendant tended to prove that the dispute with the defendant was precipitated by Brimer, and that the affray was caused by a pugnacious attitude suddenly assumed by the plaintiff, and that defendant was justified in striking and injuring the plaintiff for...