Munter v. Bande
| Citation | 1 Mo.App. 484 |
| Parties | CHARLES MUNTER, Respondent, v. JULIA BANDE et al., Appellants. |
| Decision Date | 21 March 1876 |
| Court | Court of Appeal of Missouri (US) |
1. An action for personal trespass is properly brought against both husband and wife, when committed by the wife.
2. Where it is proved that the defendant intentionally threw vitriol upon the plaintiff, a verdict of $1,000 will not be considered excessive, however little the plaintiff may have been injured thereby. It is a case for punitive damages.
APPEAL from St. Louis Circuit Court.
Affirmed, with 10 per cent. damages.
F. & E. L. Gottschalk, for appellants, cited: Green v. Craig, 44 Mo. 90; Fredersheit v. Edmondson, 36 Mo. 226; McKerr v. Citizens' Ry. Co., 42 Mo. 79; Martin v. Robson, 65 Ill. 129; Daily v. Houston, 58 Mo. 361; Boullard v. Calhoun, 13 La. An. 445; Crocker v. Chicago & Northwestern R. R. Co., 36 Wis. 676; Perkins v. Missouri, Kansas & Texas R. R. Co., 55 Mo. 201; Caldwell v. Stephens, 57 Mo. 589; Long v. Corkwell, 55 Mo. 93; Higgins v. Peltzer, 49 Mo. 152; Walser v. Shies, 56 Mo. 89; Goetz v. Autz, 22 Mo. 170.
Finkelnburg & Rassieur, for respondents, cited: Bishop's Mar. Wom., sec. 905 (ed. 1871); 2 Hill. on Torts, 503, sec. 6, and p. 506, sec. 8 (4th ed.); 2 Kent's Com. 149 (12th ed.); Baker v. Young, 44 Ill. 42; Matthews v. Fiestel, 2 E. D. Smith (N. Y.), 90; Smith v. Taylor, 11 Ga. 20; Anderson v. Hill, 53 Barb. 238; Reeve's Dom. Rel. 149 (ed. of 1862); Dailey v. Houston, 58 Mo. 361; Goetz v. Ambs, 27 Mo. 33; Green v. Craig, 47 Mo. 90; Perkins v. Missouri, Kansas & Texas R. R. Co., 55 Mo. 201; Franz v. Hilterbrand, 45 Mo. 121; Buckley v. Knapp, 48 Mo. 153; Clements v. Maloney, 55 Mo. 352; Schouler on Dom. Rel., side page 104 (2d ed.); Austin v. Wilson, 4 Cush. (Mass.); Walser v. Thies, 56 Mo. 89; 1 Bishop's Mar. Wom., sec. 907 (ed. 1871); 2 Hill. on Torts (4th ed.) 505.
The petition set forth that the plaintiff, on May 11, 1874, was burnt and his clothes injured by vitriol thrown upon him maliciously by Julia Bande, wife of John Bande. The defendants filed an answer of the form to which we have already several times called the attention of the bar. It consisted of a reproduction of the petition, with negative averments. Such a mode of pleading is very liable to involve the defendant in the meshes of a negative pregnant, and leads, at best, to an unnecessary prolix style of answering. The recent act, permitting a general denial, will, perhaps, prevent its recurrence.
At the trial the plaintiff testified, and proved the infliction of the injury complained of. He was standing, at the time, in front of the house of defendants, in quiet conversation with some other persons. He felt the fall of the vitriol on his person, and, glancing up, saw a hand and a porcelain dish in the act of drawing back from the window of the second story of defendants' house. He had been in business with defendant John Bande; they had disagreed and parted, and plaintiff had set up a rival house of his own in the neighborhood.
Johanna Schiller, a witness for plaintiff, testified that she boarded opposite to the house from which the fluid was thrown on plaintiff; that on May 11, 1874, she was at her window and saw Julia Bande look out of her window, then take a small bottle and pour some fluid into a soapdish, throw it out on defendant, and then retire into the room; that she knew Julia Bande very well, and recognized her in court.
One of the persons standing with plaintiff on the street, at the time of the occurrence, corroborated his statement as to the circumstances. This was all the evidence on the part of plaintiff.
Defendant examined several witnesses, whose testimony tended to show that Julia Bande was not up stairs during the entire morning of the day of the alleged outrage, but was in the bar-room below until half-past eleven o'clock. Julia Bande herself was examined, and denied that she threw any vitriol on plaintiff, and denied the statements of Johanna Schiller in every particular. A witness was examined, on the part of defendants, who said that Johanna Schiller “set his boarders by the ear and did not pay her board, and, as far as he knew, she told more stories than truth.” This was all the evidence.
The court instructed the jury, at the instance of the plaintiff, as follows:
“If the jury believe from the evidence that the defendant Julia Bande intentionally cast vitriol, or other corrosive chemical substance, upon plaintiff's person, then the jury will find for plaintiff.” “If the jury find for the plaintiff, and they further find that the act complained of was maliciously done, the jury, besides compensating for the injury sustained, may award such further exemplary and punitive damages as, under all the circumstances of the case, the jury may deem proper, not exceeding the sum of $5,000.”
The defendants excepted to the giving of these instructions, and asked the following, the first of which the court gave, and refused the other two, defendants excepting:
1. “The court instructs the jury that it is incumbent on plaintiff to prove to the satisfaction of the jury that defendant's wife did the acts complained of.”
2. “The court instructs the jury that if, from all the evidence in this cause, the jury have a reasonable doubt of the guilt of the defendant Julia, then the jury must find a verdict for the defendant.”
3. “The court instructs the jury that there is no evidence of any damage sustained by plaintiff, and even if the jury find for plaintiff, they cannot give more than nominal damages.”
The jury found for the plaintiff, with $1,000 damages.
The defendant filed a motion for a new trial, assigning as reasons therefor:
1. That the verdict is against evidence.
2. That the damages are excessive.
3. Because the court erred in not admitting proof of the general character of one of plaintiff's witnesses.
4. Because the court refused defendants' instructions
5. Because the court gave plaintiff's instructions.
6. Because the verdict is insufficient to render a judgment upon.
7. Because the court erred in admitting improper evidence for plaintiff, and excluding proper evidence for defendants.
8. Because defendants were surprised at the trial by the evidence of plaintiff and his witnesses.
Defendants also filed a motion in arrest of judgment, for the reasons:
1. That the verdict is insufficient and indefinite.
2. Because the judgment rendered is erroneous and unauthorized by the verdict.
3. Because the judgment is against a married woman.
4. Because the judgment is against husband and wife jointly.
The verdict was in the following words:
“We, the jury in the case of Munter v. Bande, find verdict for plaintiff, and assess the damages at one thousand dollars ($1,000).
WM. GANELS, Foreman.”
The record entry of the judgment is as follows:
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