Rhine v. Montgomery

• Decision Date: 31 October 1872
• Parties: JOSIAH RHINE, Respondent, v. JOHN W. MONTGOMERY, Appellant.
• Court: Missouri Supreme Court

50 Mo. 566

JOSIAH RHINE, Respondent,

v.JOHN W. MONTGOMERY, Appellant.

Supreme Court of Missouri.

October Term, 1872.

Appeal from Scotland Circuit Court.

Dryden & Dryden, for appellant.

The first or negative defense, “not guilty,” was not inconsistent with or nullified by the two affirmative defenses in the sense of the statute. (Lansingh v. Parker, 9 How. Pr., 288; Nelson v. Brodhack, 44 Mo. 596.)

James G. Blair, for respondent, cited Buckley v. Knapp et al., 48 Mo. 152, 163-4; Allred v. Bray, 41 Mo. 484-90; Kennedy v. North Mo. R.R., 36 Mo. 351-64; Franz v. Hilterbrand et al., 45 Mo. 121-23; Conard v. Pacific Ins. Co., 6 Pet. 268; McKeon v. Citizens' Railway Co., 43 Mo. 405-7; Anderson v. Kincheloe, 30 Mo. 520; Beale v. Cullum, 31 Mo. 258; Hayden v. Smith, id. 566; Brinkmeier v. Wissmark, 36 Mo. 592; Hook v. Craighead, 35 Mo. 380; State v. Harrold, 38 Mo. 496.

ADAMS, Judge, delivered the opinion of the court.

This was an action for assault and battery. The answer sets up three separate defenses: first, a denial of the assault and battery; second, that plaintiff made the first assault, which was repelled by the defendant in self-defense; third, that the defendant was in his own dwelling, and the plaintiff was unlawfully there, and refused to leave, and he used sufficient force to put him out, and only such force as was necessary. The record does not show that any replication was filed to the second and third defenses.

The jury found a verdict for the plaintiff, and a motion for a new trial was made and overruled. The court, at the instance of the plaintiff, and against the objections of the defendant, gave several instructions to the jury. But we are only called upon to examine the first instruction, which reads as follows:

“The defendant's answer admits the assault and battery upon the plaintiff with all the aggravated injuries to plaintiff, as charged by plaintiff in his petition; and unless the jury shall believe from the evidence in the cause that defendant was either excusable or justifiable in making such assault and battery, they will find for the plaintiff, and assess to him such damages against defendant as under all the circumstances they may think proper, not exceeding $2,000; and in estimating the damages they may take into consideration the pain, sufferings, mental anguish and wounded feelings of the plaintiff in consequence of such assault and battery.”

Under the pleadings as they stand here, it is difficult to perceive upon what principle this instruction was allowed. It asserts that the plaintiff's entire case was admitted by the answer, and under it all the plaintiff was bound to do was to read his petition to the jury and rest. The court may have acted on the mistaken theory that the positive denial of the trespass was waived by the subsequent supposed additions of the pleas of justification. Our present code of practice, like the old system of pleading, permits several consistent defenses to be set up in the same answer. The only question,...