Orscheln v. Scott
| Decision Date | 16 May 1904 |
| Parties | GEORGE ORSCHELN, Respondent, v. J. B. SCOTT, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Cooper Circuit Court.--Hon. James E. Hazell, Judge.
Judgment affirmed.
W. M Williams and John Cosgrove for appellant.
(1) Plaintiff having sued defendant for "cutting out his eye" is not entitled to recover upon proof that the sight of the eye was destroyed. He could not sue on one cause of action and recover upon another. Houston v Tyler, 140 Mo. 263. (2) The first instruction given in behalf of plaintiff is not supported by the evidence. This is subject to the same criticism as the petition. The instruction should have been predicated upon the evidence and the pleadings and not on the pleadings alone. Marr v Bunker, 92 Mo.App. 651; Kirby v. Railway, 85 Mo.App. 345; Wright v. Fonda, 44 Mo.App. 634. (3) Instruction two, given on behalf of plaintiff, does not correctly state the rule by which the damages should be measured. The plaintiff was the aggressor. Orscheln v. Scott, 90 Mo.App. 359.
W. F. Quigley, W. D. Steele and C. D. Corum for respondent.
(1) There was ample evidence to sustain the instruction given, on the theory that defendant cut out plaintiff's eye. The plaintiff testifies that "defendant cut my eye out." (2) The complaint that the first instruction given on behalf of plaintiff is not supported by the evidence, is answered in point I. The second instruction given for plaintiff has been approved by this court, when the case was first here. (3) We shall not discuss the question as to the damages being excessive. We do not believe that any appellate court has ever held or will ever hold, in any case where the assault was of the character shown in this record, that a verdict of $ 2,500 is excessive. The Cook case, cited by appellant, is not applicable.
This case is before us for the third time. Two former judgments for plaintiff were reversed and a new trial directed. 79 Mo.App. 534; 90 Mo.App. 352. By reference to those volumes a full statement of the case will be found. The latter report contains a review of the evidence somewhat in detail. On the trial resulting in the present appeal plaintiff again prevailed on evidence which the parties concede is substantially as that given at the second hearing. The trial was conducted in substantial compliance with the views expressed by us, and we do not feel warranted in again disturbing the judgment. The result of our last investigation of the case was that plaintiff should not recover exemplary damages, but that he was entitled to compensation. Several points determined and discussed on the last appeal are again presented, but we can not see any reason or room for conclusions different from those before announced.
It is now claimed that the evidence did not sustain the petition, in that the latter alleged that plaintiff's eye was cut out, when the proof showed the sight was cut out and that afterwards surgeons removed the eyeball from the socket. It is common speech to say that one's eye has been "put out," when what is meant and understood is, that the sight has been put out. The instructions show that each party regarded the severing of plaintiff's eye and destruction of sight as equivalent to cutting out the eye. We do not regard the matter as a failure of proof.
No exception was taken to instructions given for plaintiff; and the court's action on the others was...
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