Parker v. Wallace
| Decision Date | 28 October 1971 |
| Docket Number | No. 9083,9083 |
| Citation | 473 S.W.2d 767 |
| Parties | Merle Eugene PARKER, Plaintiff-Appellant, v. Vern WALLACE, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Merle Eugene Parker, pro se.
Clyde Rogers, Gainesville, Patrick O. Freeman, Jr., Thayer, Russell G. Clark, Nicholas R. Fiorella, Woolsey, Fisher, Clark & Whiteaker, Springfield, for defendant-respondent.
This is a second appeal in a civil action for assault and battery. See Parker v. Wallace, Mo., 431 S.W.2d 136. A jury has again found for the defendant, and the plaintiff again appeals.
In brief, the material facts of the case are that the defendant struck the plaintiff 'along side the face,' according to plaintiff, on Sunday morning, January 9, 1966, at or near Thornfield, in Ozark County. Though nothing concerning his conviction is shown in this record, it appears that defendant was thereafter charged with common assault in the Magistrate Court of Ozark County, and entered a plea of guilty to that charge. Thereafter, plaintiff sued defendant Wallace and one Hervil Gaulding jointly for assault and battery, praying judgment in the sum of $1,000 actual damages and $10,000 punitive damages against each defendant. At the close of the plaintiff's evidence upon the first trial the court directed a verdict in favor of defendant Gaulding, and the jury found for defendant Wallace and against plaintiff. Upon appeal to our Supreme Court the cause was reversed and remanded for error in argument, the court holding, among other things, that plaintiff had no cause of action against defendant Gaulding. The cause was remanded generally for a new trial against defendant Wallace. Plaintiff again represented himself in the trial of this case, as he has done on a number of other occasions. See Parker v. City School Superintendent, Mo., 451 S.W.2d 10; Parker v. Chamber of Commerce of Ava, Mo., 447 S.W.2d 280; Parker v. Moody, Mo., 446 S.W.2d 596; Parker v. Lowery, Mo., 446 S.W.2d 593; and State v. Parker, Mo.App., 378 S.W.2d 274.
Plaintiff's version of the incident here involved, somewhat abridged from his long narrative recital of the facts, was that on this Sunday morning he was working in an old store building at or near Thornfield which he owns and uses as a library and publishing office. Noting that he was 'low on soda pop,' he 'picked up a carton of bottles and started to walk across the road' to the Gaulding store. Mr. Wallace came out of the store, said what sounded to plaintiff like, 'Have you got your big gun?' and said to plaintiff, 'You laid for my boy and you followed him.' Then defendant reached out for plaintiff, grabbed him, and 'hit (him) along side the face.' Plaintiff's bottles 'went flying all over the ground,' defendant then shoved or pushed plaintiff to the ground, and defendant hit plaintiff 'altogether five or six times' while he was lying there on the ground. Defendant, plaintiff testified, 'had his knee in my back or he was on top of me.' Plaintiff kept protesting that he had not hurt defendant or his boy, and then he became numb and 'started to black out.' Plaintiff saw legs nearby while he was lying in the gravel, and thought they belonged to Mr. Gaulding but 'couldn't tell who was standing there.' Finally defendant got up, and plaintiff arose and picked up his glasses which were broken. He exhibited the eye glasses to Mr. Gaulding and asked Gaulding to have a look at them. Plaintiff then called the sheriff. In general outline and substance, plaintiff's version of events was corroborated by a bystander, a Mr. Stepro, who had seen what took place and said, 'I imagine he (defendant) hit Merle Parker a time or two.'
The defendant's version of the facts was that he 'had heard' 'the boy (defendant's son) and him (plaintiff) had a little trouble,' and that it had come to him that a gun was involved. Defendant had been to the Gaulding store to buy groceries and he came across the plaintiff. Defendant 'thought (he'd) talk to him about it.' So, defendant inquired if plaintiff had his 'big gun on (his) hip;' plaintiff had a carton of pop bottles and swung them at defendant. Defendant thereupon knocked plaintiff down and 'grabbed' him; plaintiff began kicking, and defendant held plaintiff down and 'shook him,' then 'turned him loose.' Defendant testified, Defendant 'just didn't intend to stand there and let him knock me in the head with that (carton of pop bottles).' Defendant repeated several times that he had been told the plaintiff fired a gun in the presence of his (defendant's) son 'a week or so' before the incident on trial. Other facts will be noted in the course of the opinion, but this is the substance of the parties' testimony.
The case presents all the usual problems of pro se appeals, in exacerbated form. In this state, a litigant may of course appear and represent himself in his own case, Klingensmith v. Thurman, Mo.App., 339 S.W.2d 300, 301(3, 4), but the observations made directly and by inference in such cases as Mazique v. Mazique, 123 U.S.App.D.C. 48, 356 F.2d 801, and Barnes v. United States, 9 Cir., 241 F.2d 252, are appropriate here. There is, at present, a good deal of pro se or pro per litigation, because many people, perhaps brilliant in other fields but untrained in the law, feel that they can better protect their interests if they appear and fight their own battles personally. The courts must, of course, guard the rights of the individual in all cases, but when a litigant is represented by counsel the limitations and circumscriptions upon the actions of the courts are understood by all, while in a matter where the litigant appears in his own person his very ignorance of the substantive and procedural law may and usually does lead him to believe that the proceeding has been unfairly handled to his prejudice. Quite often, if not ordinarily, the pro se pro per litigant regards the court as a mere forum in which to express his opinion, rather than a judicial tribunal, and usually the pro se litigant expects and sometimes obtains concessions or indulgences from the court to which he is not entitled, merely because of his inexperience and lack of training.
Such is the case here. Despite the fact that plaintiff has been heard twice in the trial courts and once in the appellate court on this relatively simple case, and despite the fact that he says he knows he bears both the burden of proof and the burden of persuasion as plaintiff, he is convinced that the sole reason for the adverse verdict in this case is that the attorneys opposing him committed dishonest and questionable acts in their trial of the case, and that the trial court tolerated those practices. On oral argument to this court, plaintiff has said that he does not Plaintiff at another point argued that plaintiff continued, 'it is totally impossible for any person who is not a long time native of that area to get a fair and impartial trial.' Much of the rest of plaintiff's oral argument runs in the same vein. In support of his position that he received an adverse verdict because of opposing counsel's dishonesty and the unfair treatment he received at the hands of the trial court, plaintiff has filed a 62-page brief and has asserted twelve points of error, some of which overlap to a considerable degree.
An illustration of the order of error asserted by the plaintiff is found in his complaint that at the beginning of the trial the court introduced the defense attorneys as 'Honorable Clyde Rogers, who is an attorney from Gainesville, Missouri and * * * Honorable Patrick O. Freeman of Thayer, Missouri, with whom many of you are acquainted.' The trial court introduced plaintiff as 'Mr. Merle Eugene Parker,' and remarked that 'he is representing himself and is to the right of the counsel table in front of me.' In the 'argument' part of his brief, plaintiff states he is 'submitting that the subtle inference contained in the (trial) Court's manner of referring to lawyers ('Honorable. * * *'), plus the specific reminder to members of the jury that many of them were personally acquainted with Mr. Patrick O. Freeman, tended to create a feeling in the minds of the jurors that these learned lawyers should receive somewhat greater attention than plaintiff * * * (and) * * * tended to create in the minds of the jurors the image of an aura of sanctity surrounding the lawyers representing the defendant.'
The plaintiff did not object to the trial court's remarks at the time. The trial court said nothing derogatory about the plaintiff, nor did it compliment Mr. Freeman or Mr. Rogers at the expense of the plaintiff, nor indicate any bias in favor of the defendant. The objection is strained and tenuous to the point of being frivolous.
Another illustrative point is plaintiff's complaint...
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