Orblitt v. Bergfeld

• Decision Date: 29 January 1917
• Docket Number: No. 17859.,17859.
• Citation: 191 S.W. 998
• Parties: ORBLITT v. BERGFELD.
• Court: Missouri Supreme Court

191 S.W. 998

ORBLITT v. BERGFELD.

No. 17859.

Supreme Court of Missouri. In Banc.

January 29, 1917.

Appeal from St. Louis Circuit Court; Thomas C. Hennings, Judge.

Action by David Orblitt against George F. Bergfeld. Judgment for defendant, and plaintiff appeals. Affirmed. Rehearing denied.

The amended petition, on which the case was tried, charges that defendant unlawfully assaulted and beat plaintiff by hitting him with his fists and kicking him with his feet; that defendant unlawfully beat and bruised plaintiff's head, body, and stomach by hitting him with his fists and kicking him with his feet, thereby injuring plaintiff's ribs, nerves, and causing internal injuries; that the injuries to his ribs and the blows on his stomach caused him serious gastric, bilious, and dyspeptic injuries; wherefore, etc., he prayed for $7,500 actual damages and $7,500 as exemplary damages.

The answer denied that defendant unlawfully assaulted and beat plaintiff as alleged in petition. It further alleges that he was attacked by plaintiff, threatened with bodily injury, and with assault; that in defense of his person, and not otherwise, he struck plaintiff to prevent the latter from inflicting on him great bodily injury; that defendant at the time made no attempt either to assault or beat plaintiff; and that, the latter being the aggressor, defendant did no more than was necessary to defend himself against plaintiff's attack.

Plaintiff introduced testimony tending to prove the issues presented in the amended petition. Defendant offered testimony tending to contradict that offered by plaintiff, and also introduced testimony tending to sustain the allegations of answer. Plaintiff in rebuttal offered testimony tending to contradict that offered by defendant.

There was substantial testimony introduced in behalf of both plaintiff and defendant. The verdict of the jury is conclusive as to the facts, if the instructions given properly declare the law.

It appears from the record that plaintiff's horse, which was unhitched, did some damage to defendant's automobile. The evidence tends to show that plaintiff agreed to pay for having the machine repaired; that it was repaired, and a charge of $5 made therefor; that said bill was paid by defendant, and an unavailing effort made to collect the same from plaintiff. Finally, on Sunday morning, defendant, being in that locality, called at plaintiff's house, presented his bill for the $5 paid on account of said repairs, and a quarrel ensued over the bill, which finally culminated in a fist fight.

The court below gave eight instructions in behalf of appellant, and refused one as asked, but it was given in a modified form. The court likewise gave, at the instance of defendant, seven instructions. The instructions will be considered in the opinion which is to follow. The jury returned a verdict in favor of defendant. Plaintiff filed a motion for a new trial, which was overruled, and the cause duly appealed to this court.

S. P. Bond and Jesse A. Wolfort, both of St. Louis, for appellant. Walton & Senti and Schnurmacher & Rassieur, all of St. Louis, for respondent.

RAILEY, C. (after stating the facts as above).

I. It is claimed that the verdict is against the overwhelming weight of the evidence, and that the trial court committed error in refusing to grant plaintiff a new trial on that ground. The only case cited by appellant which has any bearing on above question is Smoot v. Kansas City, 194 Mo. loc. cit. 531, 532, 92 S. W. 368, where Judge Fox, after reviewing the questions presented, said:

"Hence follows that well-established rule by this court that, where there is any substantial evidence tending to prove any essential fact embraced in the pleadings, this court will not undertake to disturb the action of the court in submitting such issuable fact to the jury upon proper instructions. * * * It is by no means, as has been repeatedly announced by this court, the province of a court of review to undertake to weigh the testimony or to adjust the conflicting statements of the witnesses testifying in the cause; hence the ruling upon this contention must be adverse to appellant."

The conclusion reached by Judge Fox supra for many years past has been considered as elementary law on this subject. Buford v. Moore, 177 S. W. loc. cit. 872; Brandt v. Bente, 177 S. W. 377; Woods v. Johnson, 264 Mo. 289, 174 S. W. 375; Cousins v. White, 246 Mo. 296-309, 151 S. W. 737; Meily v. Railroad, 215 Mo. loc. cit. 586, 114 S. W. 1013; Crossett v. Ferrill, 209 Mo. loc. cit. 707, 108 S. W. 52.

II. Appellant assigns as error the action of the court in excluding as evidence the general denial, filed as an answer to plaintiff's original petition. The latter was not produced nor offered in evidence. It was stated in open court by counsel for defendant that the original answer offered in evidence was simply a general denial. This statement of counsel is verified by the record before us. Eight cases are cited by appellant in support of this assignment, as follows: Walser v. Wear. 141 Mo. 443, 463, 464, 466, 42 S. W. 928; Kirkpatrick v. Met. Street Ry. Co., 211 Mo. 68, 81 and 82, 109 S. W. 682; Anderson v. McPike, 86 Mo. 293, 301; Murphy v. St. L. Type Foundry, 29 Mo. App. 541, 545; Dowzelot et al. v. Rawlings, 58 Mo. 75; Bailey v. O'Bannon, 28 Mo. App. 39; Nelson v. Wallace, 57 Mo. App. 399; Spurlock v. Mo. Pac. Ry. Co., 125 Mo. 404, 406, 28 S. W. 634.

We have carefully examined each of the above cases, and do not find anything in either convicting the trial court of error in refusing to admit in evidence a general denial filed to a former petition, when the latter was not introduced in evidence. Nor do we find in either of said cases that the trial court is required to admit in evidence a general denial filed to a former pleading for any purpose, unless some reason should appear for introducing the same.

In the Walser Case, supra, two original answers were introduced in evidence. They contained material facts relating to the case, and hence were admitted for the purpose of showing admissions made therein. In the Kirkpatrick Case both the original petition and answer were admitted, and both contained other than a general denial. In the Anderson Case the answer admitted contained other matters aside from the general denial. In the Murphy Case the answer also contained other matters beside the general issue. In the Dowzelot Case the abandoned petition was offered in evidence for the purpose of showing admissions different from those in the petition on which the case was tried. In the Bailey Case the former petitions were received in evidence for the purpose of showing admissions against plaintiff's interest. In the Nelson Case the only thing that is said on the subject appears at 57 Mo. App. on page 399, as follows:

"The abandoned reply should also have been admitted. Anderson v. McPike, 86 Mo. 293."

There is nothing in the case to indicate that the reply was a general denial, and hence it is not in point. In the Spurlock Case the former petitions were offered in evidence by way of admissions against plaintiff.

None of the above cases sustain plaintiff's contention in respect to error having been committed by the trial court in excluding defendant's general denial, filed as an answer to plaintiff's abandoned petition. We know of no case in this state which would warrant us in reversing the cause for failure to admit such an answer, when offered for the purposes indicated in appellant's brief. Counsel for defendant, however, in open court, announced that the answer was a general denial, and of course the jury must have obtained information as to that fact without it being formally produced. The exclusion of the answer, however, by the trial court, was proper, and its action in that respect is approved.

III. It is contended by appellant that defendant's instruction numbered 1, given by the court, is erroneous, because the burden of proof is on defendant in justification of the assault. Said instruction reads as follows:

"The court instructs the jury that the burden, that is, the duty of reasonably satisfying you by the evidence that the defendant attacked plaintiff unlawfully and wrongfully, is on the plaintiff. And unless the plaintiff has reasonably satisfied you of the fact that defendant assaulted and beat him, unlawfully and wrongfully, you will return your verdict in this case in favor of defendant."

The following cases are cited in support of this contention: Conway v. Reed, 66 Mo. 346, 27 Am. Rep. 354; O'Leary v. Rowan, 31 Mo. 117, 118, 119; Orscheln v. Scott, 90 Mo. App. 352, 366 to 369.

Appellant complains of the above instruction on the ground, that it imposes the burden of proof on plaintiff improperly. The three cases cited in support of this contention do not, in our opinion, sustain appellant's theory. The court properly held in these cases cited that it was improper for the trial court to instruct the jury that the burden of proof was on plaintiffs to disprove acts of negligence, self-defense, etc., but this does not meet the question we are now considering. The law has been well settled in this state for many years that, even if plaintiff makes a prima facie case, the burden of proof remains throughout the trial where the pleadings place it in the first instance. The evidence may shift, but the burden of proof never does. Benoist et al. v. Murrin et al., 58 Mo. loc. cit. 322; Norton v. Paxton, 110 Mo. loc. cit. 462, 19 S. W. 807; Craig v. Craig, 156 Mo. loc. cit. 361, 56 S. W. 1097; Lorts v. Wash, 175 Mo. loc. cit. 504, 75 S. W. 95; Goodfellow v. Shannon, 197 Mo. loc. cit. 278, 94 S. W. 979; Major v. Kidd, 261 Mo. loc. cit. 619 et seq., 170 S. W. 879, and cases cited; Long v. Long, 44 Mo. App. loc. cit. 147; Marshall Livery Co. v. McKelvy, 55 Mo. App. loc. cit. 242, and cases cited; Berger v. Storage & Commission Co., 136 Mo. App. loc. cit. 42, 116 S. W. 444, and cases cited. Numerous ...