McMillen v. Elder
| Decision Date | 07 November 1911 |
| Citation | 140 S.W. 917,160 Mo.App. 399 |
| Parties | JAMES A. McMILLEN, JR., Respondent, v. SAMUEL O. ELDER, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Pike Circuit Court.--Hon. David H. Eby, Judge.
AFFIRMED.
STATEMENT.--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 one thousand dollars actual and one thousand dollars 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 two hundred dollars actual and three hundred dollars 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 Missouri, on August 23, 1909, and the trial was concluded about half past twelve 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 two 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 first 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 his own self protection. There was also evidence introduced by defendant tending to show that plaintiff was not so seriously injured as the testimony given on his behalf would indicate. While defendant was being cross-examined by the plaintiff's counsel as a witness, the court, over the objection and exception of the defendant, permitted him to be interrogated as to the value of his real and personal property, thereby developing that he was worth somewhere near twenty-five thousand dollars.
The first instruction given to the jury at plaintiff's instance was as follows:
"The court instructs the jury that if you find from the evidence that the defendant did intentionally beat or strike the plaintiff, then your verdict should be for the plaintiff, unless you further find from the evidence that plaintiff first made an attack on the defendant, and that the defendant resisted such attack, if any, by using no more force to repel such attack, if any, than was necessary."
The second instruction after treating of the assessment of actual damages, proceeded as follows:
On behalf of the defendant the court in two instructions treated carefully and fully of every possible phase of defendant's right to defend himself, and refused to give two additional instructions on that subject. The court also instructed the jury at the instance of defendant "that before plaintiff is entitled to recover punitive damages, he must show that the act complained of was malicious on the part of the defendant." At the instance of the plaintiff the court instructed the jury "that malice does not consist alone in personal spite or ill-will, but exists in law wherever a wrongful act is intentionally done without just cause or excuse." It refused an instruction that under the pleadings and the evidence the jury could not find any punitive damages. It also refused to give an instruction offered by defendant "that the burden of proof in this case is upon plaintiff to show that the defendant first actually assaulted plaintiff and did inflict upon him some injury, otherwise the verdict should be for the defendant."
Judgment affirmed.
Robert A. May and J. D. Hostetter for appellant.
(1) There is no evidence connecting this testimony with the alleged condition of defendant as brought about by the assault and battery, if any. The evidence relating to defendant's wealth should not have been admitted for the reason that there were no aggravating circumstances shown to authorize a recovery of punitive damages. Hence, evidence of the opulence or poverty of defendant was not properly admitted in evidence. Morgan v. Durfee, 69 Mo. 481; Whalen v. Church, 62 Mo. 329. (2) The second instruction given by the court on behalf of the plaintiff was error for the reason that it authorized the jury, in addition to actual damages, to assess against the defendant punitive damages without first having found malice on the part of the defendant. In other words, it authorized the recovery of both actual and punitive damages in case they found for plaintiff, and made no requirement for malice to be found by them before a recovery could be had for punitive damages. Nicholson v. Rogers, 129 Mo. 141; State v. Jurgling, 116 Mo. 162. (3) Defendant's instruction No. 6, refused by the court, should have been given and the question of punitive damages excluded from the consideration of the jury, because there was no evidence warranting such submission by reason of the failure of the plaintiff to show aggravated circumstances on the part of defendant or that defendant's acts were maliciously done. Morgan v. Durfee, 69 Mo. 469; Ickenroth v. Transit Co., 102 Mo.App. 614. (4) Defendant's instructions Nos. 8 and 9, submitting the question of self defense to the jury should have been given. Thomas v. Werremeyer, 34 Mo.App. 669; O'Leary v. Rowan, 31 Mo. 117; State v. Walker, 196 Mo. 73.
Pearson & Pearson for respondent.
(1) In any case where the evidence tends to prove malice, it is entirely proper to receive evidence as to the financial standing and ability of defendant. Baxter v. Magill, 127 Mo.App. 392; Buckley v. Knapp et...
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