Norris v. Whyte

• Decision Date: 12 June 1900
• Citation: 57 S.W. 1037,158 Mo. 20
• Parties: NORRIS v. WHYTE.
• Court: Missouri Supreme Court

57 S.W. 1037

158 Mo. 20

NORRIS v. WHYTE.

Supreme Court of Missouri, Division No. 1.

June 12, 1900.

ASSAULT — INSTRUCTIONS — EVIDENCE — MISCONDUCT OF COUNSEL — ARGUMENT — RECORD — BILL OF EXCEPTIONS — EXCESSIVE DAMAGES — SETTING ASIDE VERDICT.

1. In an action to recover for an assault, where defendant claims that the blow was struck in self-defense, it is not error to instruct that, if the defendant struck the plaintiff, then the jury should find for the plaintiff, unless plaintiff first made an attack on defendant, and defendant resisted such attack, using no more force than was necessary to repel it, where, at defendant's request, the court also instructed that if plaintiff, being in defendant's store, was using boisterous language, and, after being ordered out, made a move to strike defendant, then such movement was an assault, although the blow failed to reach him, and defendant, being on his own premises, was not obliged to retreat, but could repel such attack with a blow, since the jury could not have been misled into understanding by the use of the word "attack," in plaintiff's instruction, in the light of the defendant's instruction, that an actual hitting or striking of defendant was necessary, to justify the latter's using force.

2. It is not error to refuse to give an instruction which, though enunciating correct legal principles, is too general in its terms to direct the minds of the jury to the respective rights of the parties under the facts, where every essential principle of law embodied therein is stated and applied in other instructions given.

3. In an action for injuries by an assault, evidence is inadmissible on the part of plaintiff to show that defendant, after the assault, employed detectives to watch the plaintiff for the purpose of ascertaining whether his injuries were real or simulated. Hence, whether or not such evidence had been admitted, it was error to permit counsel for plaintiff, in his argument, to state that the evidence showed that defendant had ample means to hire detectives to watch plaintiff, as the jury might infer therefrom that defendant was able to pay damages.

4. Refusal of the trial court to grant a new trial on the ground that counsel for plaintiff was guilty of misconduct in stating to the jury, in his closing argument, facts not warranted by the evidence, cannot be reviewed, where the statement and objection of counsel thereto are not incorporated in the bill of exceptions; nor can the facts be made a part of the record by copying affidavits presented in support of the motion for new trial in the bill of exceptions.

5. In an action to recover for an assault, where punitive damages are not claimed, a verdict for $7,000 will be set aside on appeal as rendered under the influence of passion and prejudice, where the plaintiff claims only $500 for lost time, and $500 for medical expenses incurred in consequence of the injury, and it appears that he was apparently as well two months after the alleged assault as he was before.

Appeal from circuit court, Jackson county; John W. Henry, Judge.

Action by Charles B. Norris against Ebenezer Whyte, Jr. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Chas. R. Pence and Scammon, Mead & Stubenrach, for appellant. Joseph S. Brooks and Karnes. New & Krauthoff, for respondent.

MARSHALL, J.

Action for an assault and battery. The damages are laid in the sum of $10,000, of which $500 is claimed for mediical attention and medicines, and $500 for time lost. The petition charges that the assault and battery occurred on the ____ day of September, 1896, and avers that the bones of the plaintiff's face were broken, his eyesight nearly destroyed, and concussion of the brain and paralysis produced, besides other wounds and bruises inflicted. The answer is a general denial, and a special plea that the plaintiff came into defendant's store, in Kansas City, and, without justification, used loud, boisterous, and profane language; that the defendant asked him to desist therefrom, but, instead of so doing, the plaintiff assaulted the defendant, and that defendant repelled such assault, and "made no assault upon said plaintiff, except as aforesaid, in self-defense." The reply is a general denial. The plaintiff, an oculist by profession, but a fruit raiser by occupation, for years had been selling fruit to the E. Whyte Grocery, Fruit & Wine Company. On the morning of September 14, 1896, the plaintiff left his home, near Westport, to go to the Whyte store to sell some apples and grapes. He says he can remember nothing that happened from the time he reached the curbstone at said store until about a month afterwards, when he found himself in bed at home. The plaintiff's case as to the alleged assault, therefore, rested upon the testimony of Paul Burns, 15 years old, and Harry L. Rhodes, 16 years old, who were at that time employed as cash boys in the Whyte store, but who, after remaining about six months and three months, respectively, in such employ, severed their connection therewith, and appear in this case as the sole witnesses for the plaintiff to his claim. Their testimony is substantially the same, and is to the effect that plaintiff came into the store during the morning hours of September 14, 1896, and was talking to the elder E. Whyte, the father of the defendant, who was standing at a desk behind the counter, when Whyte called the plaintiff "a dirty old scalawag," as Burns puts it, or "an infernal scamp," as Rhodes puts it; that the plaintiff replied, "You are a damn liar," and that thereupon the defendant, who was about 10 or 15 feet away, walked over to the plaintiff, and without any talk or warning or provocation, or anything done or attempted to be done by the plaintiff, struck the plaintiff a violent blow with his left hand on the left cheek, just below the eye, which knocked him down and rendered him insensible, and that he was then carried to the rear of the store and laid on some sacks, and a doctor sent for; and that he was carried from the store some hours afterwards. Rhodes fixes the time at 11:23 a. m., and says he knows it because Miss Duvall, who had charge of the cigar stand, asked him the time, and he looked at the clock in the back part of the store. On this point, however, he is flatly contradicted by Miss Duvall, who says nothing of the kind took place, and further says that there was no occasion for her to ask Rhodes the time, as there was a clock at the front of the store, in full view of where she stood. The testimony of these two boys as to the alleged assault is contradicted by the defendant and James Foster, George Foster, Arthur Hoisman (clerks in the Whyte store), and E. Whyte, Sr., all of whom testify that E. Whyte, Sr., did not call the plaintiff "a dirty old scalawag" or "an infernal scamp," but that the plaintiff, in a loud voice, said to E. Whyte, Sr., "You are a God-damned liar," and that thereupon the defendant walked towards plaintiff, and plaintiff turned partially around and made a motion to strike the defendant, who threw up his right hand to guard himself, and at the same time struck the plaintiff one blow with his left hand; but it is not clear whether he struck him on the cheek, the mouth, the neck, or behind the ear. The plaintiff's testimony and that of his expert medical witnesses is that he suffered a concussion of the brain, followed by a "partial paralysis of a branch of the facial nerve, involving the eyeball and eyelid, causing a drooping of the eyelid, called `ptosis,' and also what we call `motor-oculi paralysis,'" and that later "the ptosis was overcome partly. He had partially recovered from that. But the ocular muscles (that is, the recti and oblique muscles, that move the eyeball proper, were still in a state of paralysis, and the eyes wouldn't move in harmony. There was a want of fixation by which the eyes focus the distance of an object. Upon the exclusion of light from one eye, he can bring the other eye in focus, but he can't move this injured eye in focus, because of exophoria. Objects appear confused and double, causing diplopia or two objects." All of which appears from the record to have been so clear and plain to the counsel, jury, and court that no more explicit explanation was asked, but which appears, as nearly as can be gathered from the testimony, to mean that a nerve on the left side of the face was injured, which caused the eyelid to droop, and disturbed the plaintiff's capacity to measure distances, and caused him to see double. The plaintiff testified that prior to the assault he was healthy and active, although about 65 years old, and that since the accident he is weak and feeble, and unable to go about by himself, and he has to be assisted when he walks. On the other hand, there was evidence offered by the defendant tending to prove that when not in court he went around by himself, without assistance. The plaintiff's witnesses, Burns and Rhodes, say that the plaintiff had been in the Whyte store once before on the same day the alleged assault took place, but they give no account of what took place then. The only explanation of that visit, and the causes that led up to the difficulty, that the record affords, is that given by E. Whyte, Sr. He says the plaintiff came into the store about 9 o'clock in the morning and wanted to sell some apples, and he told him his apple buyer was out of the store, but would return in a short time, and asked him to take a seat and wait; that plaintiff did so, but soon became impatient and came to his desk and asked if his son had returned, and thereupon he told plaintiff he had not returned, but asked him about the quality and price of the apples, and plaintiff told him they were Brother Jonathans, and were worth 50 cents a bushel, and that he had 15 bushels of them. So he agreed to buy them, and the plaintiff agreed to deliver them the latter part of the next week, and the plaintiff left. He returned,...