Norris v. Whyte
| Decision Date | 30 June 1900 |
| Parties | NORRIS v. WHYTE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. John W. Henry, Judge.
Reversed and remanded.
Chas R Pence and Scammon, Mead & Stubenrauch for appellant.
(1) Where damages awarded by the jury are excessive and unwarranted, the Supreme Court will award a new trial. Goetz v. Ambs, 22 Mo. 170; Sawyer v Railroad, 37 Mo. 241; Furnish v. Railroad, 102 Mo. 148; Johnson v. Railroad, (Minn.) 69 N.W. 900. (2) Upon plaintiff's own showing this case should be reversed on account of misconduct of counsel in argument. Gibson v. Zeitig, 24 Mo.App. 66; Norton v Railroad, 40 Mo.App. 642; Ensor v. Smith, 57 Mo.App. 584; Smith v. Western Union Tel. Co., 55 Mo.App. 626; Williams v. Railroad, 123 Mo. 573; State v. Lee, 66 Mo. 165. (3) That plaintiff is turbulent or the defendant quiet in disposition, is not competent evidence in an action for assault and battery; in such action the character of the plaintiff is not in issue. Smithwick v. Ward, 75 Am. Dec. 453.
Joseph S. Brooks and Karnes, New & Krauthoff for respondent.
(1) It is contended by counsel for defendant that "where damages awarded by the jury are excessive and unwarranted, the Supreme Court will award a new trial." This is not the true rule. The mere fact that an appellate court may regard the damages as excessive, does not warrant a reversal. Traber v. Hicks, 131 Mo. 180; Leahy v. Davis, 121 Mo. 227; Boggess v. Railroad, 118 Mo. 328; Dowd v. Westinghouse Air Brake Co., 132 Mo. 579; Weinberg v. Railroad, 139 Mo. 286; Hollenbeck v. Railroad, 141 Mo. 97; Liese v. Meyer, 143 Mo. 547; Hartpence v. Rogers, 143 Mo. 623; Morgan v. Ross, 74 Mo. 318; Berkson v. Railroad, 144 Mo. 211; Fullerton v. Fordyce, 144 Mo. 519; Railroad v. George, 145 Mo. 38; Nichols v. Nichols, 147 Mo. 387; Oglesby v. Railroad, 150 Mo. 137; Chouquette v. Railroad, 53 S.W. 897. (2) "Mere words, no matter how abusive they may be, can not justify an assault." Murray v. Boyne, 42 Mo. 472; State v. Griffin, 87 Mo. 608; State v. Gamble, 119 Mo. 433. (3) In respect to the alleged improper remarks of counsel, the bill of exceptions fails to show any exception thereto, or any request of the court to order counsel to desist. No mention is made of the alleged improper remarks until the filing of the motion for new trial and affidavits in support thereof. State v. Forsythe, 89 Mo. 667; State v. Howard, 118 Mo. 127; Wilson v. Taylor, 119 Mo. 626; State v. Underwood, 76 Mo. 630; State v. Sanders, 106 Mo. 188; State v. Reed, 154 Mo. 122; State v. Hayes, 81 Mo. 574; State v. Blunt, 110 Mo. 322; City v. Cook, 120 Mo. 1; State v. Steen, 115 Mo. 474; State v. Duncan, 116 Mo. 288; State v. Welsor, 117 Mo. 570; State v. Bulling, 105 Mo. 204; State v. McDaniel, 94 Mo. 301.
Action for an assault and battery.
The damages are laid in the sum of ten thousand dollars, of which five hundred dollars is claimed for medical attention and medicines, and five hundred dollars 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, 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 and 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 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, fifteen years old, and Harry L. Rhodes, sixteen 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 the plaintiff came into the store during the morning hour 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 ten or fifteen feet away, walked over to the plaintiff and without any talk or warning or provocation or any thing 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 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, 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 oxophodia; 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 sixty-five years old, and that since the accident he is weak and feeble and unable to go about by himself, and he had to be assisted when he walked. 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 nine 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 fifty cents a bushel, and that he had fifteen 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, however, about an hour later and told Mr Whyte he could not let him have the apples, and when asked why, said Mr. Garth would give him ten cents a bushel more for them than he had agreed to sell them to Mr. Whyte for, and that ten cents was a good deal to him. Mr. Whyte then said he could sell Mr....
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