Pritchard v. Hewitt

• Decision Date: 16 May 1887
• Citation: 91 Mo. 547,4 S.W. 437
• Parties: PRITCHARD v. HEWITT.
• Court: Missouri Supreme Court

4 S.W. 437

91 Mo. 547

PRITCHARD v. HEWITT.

Supreme Court of Missouri.

May 16, 1887.

1. APPEAL — HARMLESS ERROR — INSTRUCTIONS.

The refusal of the trial court to give an instruction upon a particular issue asked by appellant, and to which he was clearly entitled, is no ground of reversal where the jury finds for appellant upon that issue.

2. NEW TRIAL — TORT — DAMAGES.

In personal actions founded upon tort, and sounding merely in damages, a new trial will not be granted on the sole ground of smallness of damages, unless, under all the circumstances, the verdict appears to have been the result of either passion, prejudice, or partiality.

3. SAME — ASSAULT AND BATTERY.

In an action of assault and battery, the jury awarded plaintiff one dollar as damages. Held that, while the evidence showed that defendant was not justified in making the assault, yet, as it also showed that plaintiff was not without fault, the verdict would not be disturbed.

Appeal from De Kalb county.

S. G. Loring, for plaintiff in error. Ramey & Brown, for defendant in error.

BRACE, J.

This was an action commenced by the plaintiff in the circuit court of De Kalb county to recover damages of the defendant for maliciously assaulting, shooting, and wounding the plaintiff, which resulted in a verdict for the plaintiff for one dollar. The defense was son assault demesne. After an unsuccessful effort for a new trial, the plaintiff, having saved his exceptions, brings the case to this court by writ of error, and assigns for error: (1) That the court refused to give instructions Nos. 7 and 8 for plaintiff; (2) that the court gave the instructions asked for the defendant; (3) that the court overruled plaintiff's motion for a new trial.

The refused instructions, Nos. 7 and 8, asked for by the plaintiff, and the instruction given by the court for the defendant, were all upon the issue joined upon defendant's plea, — that plaintiff first assaulted him, and that, in resisting that assault, he used no more force than was necessary to resist such assault, and protect himself from great personal injury; and, as that issue was found for the plaintiff by the jury, no harm resulted to him from the action of the court in that behalf, even though it be conceded that plaintiff's refused instructions were correct, and that the one given for the defendant is obnoxious to the criticism placed upon it. The action of the court in giving the one, and in refusing the others, would therefore be no ground for reversal. Gregory v. Chambers, 78 Mo. 294; Morris v. Railroad Co., 79 Mo. 367.

On the quantum of damages for plaintiff the court gave the following instruction: "If the jury find for the plaintiff, in estimating his damages they will take into consideration the physical injury inflicted, and the bodily pain and mental anguish endured, together with the loss of time occasioned, and all expenses incurred shown by the evidence in and about the treatment of his case; also any and all such damages...