Parris v. Crutcher
| Decision Date | 12 March 1915 |
| Parties | SARAH E. PARRIS, Respondent, v. L. F. CRUTCHER, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Greene County Circuit Court.--Hon. John Schmook, Special Judge.
Judgment reversed and cause remanded.
C. O Hamlin and Hamlin & Seawell for appellant.
The court erred in its instruction on the measure of damages. Absent evidence showing permanent injuries, the court erred in permitting the jury to go into the field of speculation and assess damages for same. Wilber v. Railroad, 110 Mo.App. 689, and cases cited; Biglow v. Railroad, 48 Mo.App. 367; Cherry v. Railroad, 163 Mo.App. 53.
Devorss & Nee and Patterson & Patterson for respondent.
(1) Counsel for appellant nowhere contend in their brief that the verdict is excessive, and therefore they are not in a position to complain of instruction number 1. Shaw v Goldman, 183 Mo. 461. (2) An erroneous instruction must be prejudicial in order to warrant a reversal. Berkley v Assn., 153 Mo. 300; Jones v. Railroad, 178 Mo. 528; Mochowik v. Railroad, 196 Mo. 568; Peterson v. Transit Co., 199 Mo. 344; McKinstry v. Transit Co., 108 Mo.App. 12; Lilton v. Railroad, 111 Mo.App. 140; Eberly v. Railroad, 96 Mo.App. 371; Fields v. Railroad, 80 Mo.App. 607.
--The defendant and plaintiff's husband engaged in a fight at the Parris home which terminated in the defendant calling for "mamma" (his wife) who was near and who pulled the plaintiff's husband off of the defendant. The defendant as a result of the altercation received the usual black eyes, scratches and bruises. In the preliminary skirmishes the plaintiff appeared and undertook to prevent any trouble and the defendant grabbed her by the throat, as the testimony tends to prove, and knocked her off of the porch backward, as the result of which she claims to have received injuries for which she sued for fifteen hundred actual and two thousand dollars punitive damages. The defendant's testimony tends to prove that he did not in any manner injure the plaintiff. The Parris's lived in defendant's house and he went there to collect rent. A jury trial resulted in a verdict for plaintiff in the sum of five hundred dollars actual damages and the defendant has appealed.
There is no testimony that tends to prove any permanent injuries to the plaintiff as the result of the alleged conduct of the defendant, but in an instruction given in behalf of plaintiff upon the whole case the jury was told that in determining the amount of plaintiff's damages they should taken into consideration "the extent of the plaintiff's injuries, if any such are shown by the evidence, including the physical pain and mental anguish if any, suffered by her on account of such injuries both at the time of the assault and such mental anguish and physical pain, if any, as she may be reasonably certain to suffer in the future therefrom." The objectionable feature of this instruction we have italicized. It was error to give it because there was no testimony upon which to base it, but there was such testimony as that the jury would necessarily be misled thereby.
On behalf of the defendant the jury was instructed that there was no evidence that plaintiff's injuries, if any, were permanent and that if they found the issues in favor of the plaintiff no sum should be allowed her for permanent injuries. These two instructions are so inconsistent that it is not possible to tell which the jury followed. [Stid v. Missouri Pacific Railroad Co., 236 Mo. 382, 399, 139 S.W. 172.]
The defendant testified in his own behalf and upon cross-examination he was asked if he was not convicted a number of years ago and fined one hundred dollars for assaulting a little girl that stayed at his house. The question was objected to but before the court ruled on the objection the question was repeated. Another objection was interposed after it was repeated and the court overruled it. The question was again repeated and we are...
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