Primm v. Schlingmann

• Decision Date: 05 June 1923
• Docket Number: No. 17787.,17787.
• Citation: 212 Mo. App. 133,253 S.W. 469
• Parties: PRIMM v. SCHLINGMANN.
• Court: Missouri Court of Appeals

253 S.W. 469

212 Mo. App. 133

PRIMM v. SCHLINGMANN.

No. 17787.

St. Louis Court of Appeals. Missouri.

June 5, 1923.

Appeal from St. Louis Circuit Court; Chas. B. Davis, Judge.

Action by Theresa Primm against Henry Schlingmann, revived upon defendant's death against Elizabeth Schlingmann, executrix of his estate. Judgment for plaintiff, and defendant appeals. Affirmed.

Lubke & Lubke and Leahy, Saunders & Walther, all of St. Louis, for appellant.

Charles A. Lich, of St. Louis, for respondent.

DAUES, J.

This is an action for damages for assault and battery. Plaintiff instituted the suit in the circuit court of the city of St. Louis on October 25, 1919, against Henry Schlingmann, now deceased. Summons was duly issued returnable to the December term. 1919, and on December 3, 1919, the defendant filed his answer. Later the death of defendant Henry Schlingmann was suggested and on February 6, 1920, a writ of scire facias was issued returnable to the April term, 1920, against Elizabeth Schlingmann executrix of the estate of said Henry Schlingmann, deceased, to show cause why the cause should not be revived against her as such executrix. On April 6, 1920, at the return term of scire facies said executrix filed her return, wherein she asserted that the cause of action alleged in plaintiff's petition had abated by the death of Henry Schlingmann; that no action for damages for assault and battery could be continued after the death of the defendant thereto against the executor or administrator of the estate of such defendant. The court overruled the return to the order to show cause, and revived the cause against the executrix of the deceased's estate, and the same proceeded to trial against said executrix, who filed a general denial as an answer. There was a verdict and judgment in favor of plaintiff for $2,000, and the defendant appeals.

The record is very short. For the plaintiff the evidence tended to show that plaintiff's family was a tenant of the deceased Schlingmann; that on October 8, 1919, Schlingmann ordered plaintiff to vacate the premises; that plaintiff pleaded with the deceased not to put her out, as the family had just received several wagonloads of coal; that thereupon Schlingmann, uttering opprobrious language not necessary to repeat, struck the plaintiff in the abdomen with his fist; that she was led upstairs to her rooms; that she was pregnant with child at the time; that she miscarried a few days afterwards; and that she suffered much pain and anguish from the blow.

Schlingmann having died before the time of the trial, plaintiff was not permitted to testify. The evidence for plaintiff was adduced, in part through one John Vitele, a coal dealer, who; seemingly as a disinterested witness, testified that he was in the alley near the house unloading coal sold by him to plaintiff at the time. He said he saw the deceased assault the plaintiff; that he heard Sellingmann "holler" to the plaintiff, "Now, you will have to get out"; that plaintiff came downstairs with tears in her eyes, went up to Mr. Schlingmann's porch to talk to him, and that she said: "Why didn't you tell me, Mr. Schlingmann, a week or two ahead of time, so could cancel my order?" Witness said that the deceased then struck plaintiff in the abdomen, uttering an epithet while doing so, and that deceased then went into his house, that witness started to help plaintiff upstairs, but that her husband came down and took her upstairs.

Another witness, a lady acquaintance of plaintiff, testified that she nursed plaintiff after the alleged assault, and that on October 18th she actually saw plaintiff have a miscarriage; that plaintiff was very sick and had several fainting and sinking spells to the extent that witness thought she was dying.

Dr. Charles E. Schleeter testified that he attended plaintiff, making the first visit about 11 o'clock p. m., October 8, 1919; that he found her liver congested; that she was suffering from much pain and was vomiting continually; that she had excruciating pains in the stomach and had a redness in the region of the liver, and that some of the spots remained far several weeks, and that she had pain in the region of the liver for a long time, also in the region of her stomach; that after a month and a half she came to his office; that she was very nervous at the time and somewhat hysterical; that this condition lasted about two or three weeks. As to any permanent injuries, the witness testified it was difficult to tell because some cases act differently than others, and he doubted whether there was any permanent injury outside, "she may have a little liver trouble through it."

Another witness, Pauline Bennett, testified that she was at the home of plaintiff the day following the alleged assault, and that plaintiff had attended police court, but was so sick she had to be put to bed, and that she was swollen about the abdomen and had bruises about that region.

The defendant's evidence was to the effect that witness Vitele could not see the place where the assault is alleged to have been committed because of the height and location of the shed. There was evidence tending to show that one standing at the point indicated by Vitele at the time he said he saw the assault could not have seen same. ALd on rebuttal plaintiff adduced testimony to show that standing on the wagon then used by him he could have seen same.

The main assignment of error goes to the question as to whether an action for damages for assault and battery survives after the death of the defendant during the pendency of the action and can be revived against his executrix.

Appellant's argument proceeds upon the theory that under sections 97 and 98, R. S. 1919, relating to administration, no such action for damages for assault and battery can be maintained against the executor or administrator of a deceased person. Respondent, on the other hand, argues that the enactment of section 4231, R. S. 1919, repeals and supersedes said sections 97 and 98, supra, in so far as a revival of actions for assault and battery are concerned. However, as we interpret the statutes, this is not the exact question involved, as will appear from our discussion of the question.

We set out these statutes in full:

Section 97, R. S. 1919: "For all wrongs done to property, rights or interest of another, for which an action might be maintained against the wrongdoer, such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrongdoer, and, after his death, against his executor or administrator, in the same manner and with like effect, in all respects, as actions founded upon contract."

Section 98, R. S. 1919: "The preceding section shall not extend to actions for slander, libel, assault and battery or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator."

Section 4231, R. S. 1919: "Causes of action upon which suit has been or may hereafter be brought by the injured party for personal injuries, other than those resulting in death, whether such injuries be to the health or to the person of the injured party, shall not abate by reason of his death, nor by reason of the death of the person against whom such cause of action shall have accrued; but in case of the death of either or both such parties, such cause of action shall survive to the personal representative of such injured party, and against the person, receiver or corporation liable for such injuries and his legal representatives, and the liability and the measure of damages shall be the same as if such death or deaths had not occurred."

It is appellant's argument that since said section 98 specifically sets out the several kinds of actions which may...