Meredith v. Whillock

• Decision Date: 28 July 1913
• Parties: S. L. MEREDITH, Respondent, v. CHAS.W. WHILLOCK, Appellant
• Court: Missouri Court of Appeals

158 S.W. 1061

173 Mo.App. 542

S. L. MEREDITH, Respondent, v. CHAS.W. WHILLOCK, Appellant

Court of Appeals of Missouri, Springfield

July 28, 1913

Appeal from St. Clair County Circuit Court.--Hon. C. A. Calvird Judge.

AFFIRMED (on condition).

Judgment affirmed.

W. W Wood, George H. Daniel and Rechow & Pufahl for appellant.

(1) The defendant's objection to the amending of the plaintiff's petition by interlineation should have been sustained. (2) The court admitted incompetent evidence over defendant's objection in permitting the plaintiff to cross-examine defendant about charges and convictions in the police court. O'Connor v. Transit Co., 106 Mo.App. 215; Koch v. State, 3 L. R. A. (N. S.) 1896. (3) The statute provides that any person who has been convicted of a "criminal" offense may be compelled upon cross-examination to testify relative to such conviction. State v. Blitz, 171 Mo. 539. (4) A proceeding under a city ordinance is a civil and not "a criminal" proceeding. City of Marshall v. Geo. W Standard, 24 Mo.App. 192; Ex parte Hollwedell, 74 Mo. 401; City of Gallatin v. Fannin, 128 Mo.App. 324; State v. Dineen, 203 Mo. 636; St. Louis v. De Lassus, 205 Mo. 578; Koch v. State, 3 L. R. A. (N. S.) 1086; Kansas City v. Clark, 68 Mo. 588; St. Louis v. Knox, 74 Mo. 79; O'Connor v. Transit Co., 106 Mo.App. 215; Caruthersville v. Palsgrove, 155 Mo.App. 564; Carthage v. Bird, 146 Mo.App. 326; City of Mexico v. Harris, 115 Mo.App. 707; City of Gallatin v. Tarwater, 143 Mo. 40; State v. Gustin, 152 Mo. 113; State v. Muir, 86 Mo.App. 642. (5) In civil action the character of neither party, until assailed, can be inquired into, unless it is put in issue by the proceeding itself. Gutzwiller v. Lackman, 23 Mo. 172; Rogers and Gillis v. Troost's Admr., 51 Mo. 470; Dudley v. McCluer, 65 Mo. 241; Vawter v. Hultz, 112 Mo. 633; Black v. Epstein, 221 Mo. 286; Lumber Co. v. Hartman, 45 Mo.App. 647; Grocer v. Targart, 78 Mo.App. 166; Gordon v. Miller, 111 Mo.App. 342; Stewart v. v. Watson, 133 Mo.App. 47; Shoffner v. Fink, 163 Mo.App. 113.

G. C. Burnside, J. C. Hargus and Hamlin & Seawell for respondent.

(1) The undisputed evidence is, that appellant struck respondent without legal justification or excuse. There was no plea nor evidence of justification, hence the respondent was entitled to a verdict in his favor. Williams v. Williams, 132 Mo.App. 266; Johnson v. Dailey, 136 Mo.App. 539. (2) The amendment to the petition was proper and did not change the issues in the case and the motion to strike was properly overruled. (3) Evidence of defendant's conviction in police court was properly admitted. Secs. 6383, 9340 and 9539, R. S. 1909; State v. Chappell, 179 Mo. 333; State v. Loehr, 93 Mo. 106; State v. Shanks, 150 Mo.App. 372; City v. Moran, 121 Mo.App. 682; City v. Duncan, 238 Mo. 513; State v. Long, 201 Mo. 674; City v. Amelu, 235 Mo. 669; Gardner v. Railroad, 135 Mo. 90.

FARRINGTON, J. Robertson, P. J., concurs. Sturgis, J., concurs in all except section I of this opinion.

OPINION

FARRINGTON, J.

This is an action for damages on account of an assault and battery alleged to have been committed by the appellant upon the respondent in a barber shop at Humansville on November 3, 1911. Upon trial, the jury returned a verdict giving respondent $ 3000 actual and $ 100 punitive damages. The defendant below is appellant here.

The petition charged, in substance, that defendant assaulted and beat the plaintiff with his fist in the face and on the head, thereby knocking plaintiff down, and that in falling, plaintiff's head struck some hard substance whereby he was rendered unconscious for several hours and sustained great bodily injuries which confined him to his bed for a considerable time, and that by reason of the battery plaintiff was paralyzed on the right side of his body and head and rendered unable to stand or walk without support, and that he was unable to eat food other than solubles, the tongue refusing to perform its function because of said paralysis; that by reason of said injuries, plaintiff is a physical and nervous wreck, and will suffer, and remain a paralytic, for the remainder of his lifetime; that throughout life he will be unable to pursue his occupation and will be compelled to expend large sums of money for attendants, medicine and medical attention. Actual damages in the sum of $ 6500 and punitive damages in the sum of $ 1000 constitute the prayer.

The answer was merely a general denial.

All the witnesses, including the defendant, testified that defendant struck the plaintiff. Most of the witnesses were men who were in the barber shop at the time the trouble occurred, and each detailed the altercation as it appeared to him, so that the greater part of the record consists of the several recitals of the conversation between the principals which immediately preceded the battery. As there was no plea of justification or excuse, and as the trial court properly instructed the jury that words, however insulting or aggravating, will not justify, excuse or be a just cause for an assault and that such insulting or aggravating words cannot be considered by the jury for the purpose of mitigating or reducing the amount of actual damages, it is unnecessary to set forth the evidence in detail.

The plaintiff testified that he entered the barber shop and immediately engaged in conversation with J. D. Akins who was waiting. They owned adjoining land, and had previously agreed not to have gravel hauled from their land. A creek flowed on or near the line. Their conversation was entirely friendly. It seems that some one had hauled gravel along or near the creek bed. Akins said he didn't want the gravel hauled and plaintiff said he wouldn't allow any one in the future to haul gravel on his land. Plaintiff says he was standing in front of the stove and did not know defendant was in the room until he spoke up (being in the barber chair) and said, "What is it to you? The north bank of the creek is the line," to which plaintiff replied, "No, I guess not. " Defendant then offered to bet $ 100 and plaintiff said that wouldn't change the facts any. Defendant offered to bet $ 500, whereupon plaintiff said: "Charlie, that is the way with you; whenever anybody disagrees with you, you always want to bet, and you know I don't bet." Plaintiff says that defendant murmured something and plaintiff then said, "Charlie, maybe that is like lots of other things you think you know, that you don't know," to which defendant murmured something which plaintiff did not understand, and then said, "If you ever dispute my word again about that, I'll slap your jaw." Plaintiff answered: "Charlie, you are bigger than I am, but I am not afraid of you." Plaintiff testified that by this time defendant had been shaved and was out of the chair and that he thought the defendant started to get his hat and that he (the plaintiff) turned his face toward Mr. Akins and defendant then struck him in the face. He says the blow dazed him and that he fell back and struck his head against something hard but didn't know whether he fell clear down or not. He was convinced that defendant struck him with the open hand, but the blow made a blood blister on his face. He said he did not see the defendant coming and did not know defendant was going to strike him. Plaintiff weighed about 125 pounds and defendant weighed over 200 pounds. Plaintiff testified he was 58 years of age, and defendant said that he was fifty. The evidence shows that after the altercation, plaintiff complained of hurting in the back of his head, and hot cloths were applied, and that he was then taken to Doctor Russell's office where he remained for over an hour and was then taken home in a carriage. Plaintiff says he remembers very little of what occurred after he was struck. There is no necessity of setting forth his testimony concerning his condition. Suffice it to say that gradually paralysis came on, affecting the right side of the body and part of his tongue and face. He was confined to his bed for thirty-seven days and did not leave the room for sixty days, during all of which time he was almost helpless. The only two doctors who testified in the case stated that they had attended the plaintiff and that considering his condition and his age the chances for recovery were slight. Plaintiff testified that thirty years before this he had rheumatism but never had paralysis and was in good health prior to this trouble.

Two of plaintiff's witnesses testified that after defendant struck him the plaintiff took hold of a poker which he put down when defendant told him to do so, and that plaintiff then hit the defendant with his fist.

J. D. Akins testified for the defendant that he was present and that when defendant offered to bet $ 500 plaintiff said, "I don't make my living that way, Charlie." He also testified that just before defendant struck the plaintiff, the latter said, "It don't make any difference if you are a great big bull, I am not afraid of you." Defendant testified to substantially the same facts, but plaintiff's witnesses did not hear him make such a statement.

I. Appellant, after assigning seven errors, throws his entire strength in the brief and printed argument upon one, which is that the trial court erred in permitting the plaintiff to cross-examine the defendant concerning certain proceedings in the Humansville police court over defendant's objection. The record is as follows: "Q. I will ask you if on the 11th day of December, 1907, in the city of Humansville, State of Missouri, you were convicted before the police judge of that city of the crime of assaulting one Ed Rathborne, and a fine was assessed against you? By Judge Rechow: If the court please, we object to that question, for the...