Rhoades v. Alexander

• Citation: 57 S.W.2d 736
• Decision Date: 07 March 1933
• Docket Number: No. 22096.,22096.
• Court: Court of Appeal of Missouri (US)
• Parties: RHOADES v. ALEXANDER.

57 S.W.2d 736

RHOADES v. ALEXANDER.

No. 22096.

St. Louis Court of Appeals. Missouri.

March 7, 1933.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

"Not to be published in State Report."

Action by Carl K. Rhoades against Serena Alexander. From a judgment for plaintiff, defendant appeals.

Reversed and remanded, with directions on condition.

McCarthy, Morris, Zachritz & McGrail, of St. Louis, for appellant.

Sanders, Burleigh & Ehrhard, of St. Louis, for respondent.

McCULLEN, Judge.

This action grows out of an assault and battery alleged to have been committed by defendant on plaintiff whereby plaintiff suffered personal injuries for which he claims damages. There was a trial before the court and a jury, which resulted in a verdict and judgment for plaintiff in the sum of $1,000 assessed as actual damages. From that judgment defendant has duly appealed.

The petition of plaintiff alleged in substance that on July 12, 1928, while he was seated in front of a hotel, in the city of St. Louis, Mo., defendant, without just cause or provocation, maliciously and with intent to injure him willfully and unlawfully beat, assaulted, and wounded him, scratching, cutting, and bruising his face, injuring his eyes, subjecting him to pain, humiliation, and disgrace in the presence of a number of people there assembled; that by reason thereof he was humiliated and brought into public ridicule and contempt, whereby he suffered great pain of body, mind, and a severe nervous shock, from which he still suffers.

The prayer of the petition was for $1,000 compensatory damages and $14,000 punitive damages.

The answer of defendant was a general denial.

Plaintiff testified that on the evening of July 12, 1928, he was seated in a chair in front of the Royal Arms Hotel, located at 4489 Washington avenue, in the city of St. Louis, reading his newspaper. A number of persons were seated around on both sides of him. Upon looking up from his paper, plaintiff noticed defendant entering the hotel. Shortly thereafter she came out of the hotel and going up close to plaintiff said, "I want to see you." Plaintiff started to arise, and as he got part way up he was struck in the face by defendant, his glasses being knocked from his face, defendant saying to him: "Damn you, I will kill you. Why don't you pay your bills?" Plaintiff testified that he tried to get away from defendant, but that she held onto him as he tried to get into the hotel; that he called upon the proprietor of the hotel to take defendant away from him; that the proprietor and proprietor's wife finally got defendant inside the door of their apartment, and thus plaintiff got away from her.

Plaintiff further testified that defendant struck him several times; that during the assault upon him she tore his straw hat, his necktie, and tore buttons off his shirt; that the time of the assault covered a period between five and ten minutes, during which time he said defendant "was trying to tear me up, it seemed to me like. She was striking me and scratching me and telling me she was going to kill me and called me a damned cur." Plaintiff testified that as a result of the assault he had "three pretty good scratches" on the side of his face; that he was required to go to a doctor twice because of the injuries inflicted on him by defendant.

The testimony of plaintiff with respect to the assault was corroborated in the main by Lowell W. Bayes, who testified that he was sitting talking to plaintiff outside of and in front of the hotel when defendant came out of the hotel and told plaintiff she wanted to speak to him; that plaintiff said, "Good evening," to defendant and started to get up, when defendant hit plaintiff in the face and asked him why he didn't pay his bills; that plaintiff asked her what she meant by that, and defendant answered that she would show him what she meant and hit plaintiff several times while he was backing up and trying to get away from her; that plaintiff backed into the hotel in his efforts to get away from defendant. This witness said there were several persons present during the assault.

Plaintiff's testimony as to his torn hat and shirt and the scratches on his face was corroborated by his brother, who saw him that evening after the happenings in front of the hotel. He stated, in answer to a question concerning plaintiff's condition, "I noticed he was very agitated."

Defendant testified that she was the manager of the Lindell Plaza Hotel, where plaintiff had formerly lived; that plaintiff owed her a bill for room rent, laundry, meals, and telephone calls which had accrued while he was a guest at her hotel during the latter part of 1927. She testified to efforts which she had made to collect the amount of this bill from plaintiff, saying that he had promised several times to take care of it, but never had paid it. She testified that she made a visit on the evening in question to the Royal Arms Hotel, where plaintiff was living at the time; that as she came out of the hotel she was going home and on her way down the steps from the front porch when plaintiff said, "Good evening"; that she asked him, "Mr. Rhoades, when are you going to pay me your bill?"; that plaintiff turned and went into the hotel, and as he walked up the steps she grabbed hold of his coat. She did this, she said, because she wanted him to tell her when he was going to pay her. She denied that she struck plaintiff at any time; denied that she cursed him; denied that she scratched him, and said she did not have her hands on him at all.

Hilda Lewis, defendant's sister-in-law, testified as a witness for defendant. She is the wife of defendant's brother, the brother being the proprietor of the hotel where plaintiff was living at the time of the alleged assault. She said that she happened to step out of her room in the hotel and saw defendant and plaintiff halfway up the stairs; that defendant had plaintiff by the coat; that defendant asked plaintiff, "When are you going to pay me?"; that plaintiff cursed at defendant; that defendant used no bad language; that defendant did not strike plaintiff; that all defendant did to plaintiff was to pull him by the coat tails.

Additional testimony was given by both sides, but it is unnecessary to present it here.

Counsel for defendant strongly urge the reversal of the judgment herein because of the conduct of the trial judge when Hilda Lewis, a witness for defendant, was on the stand. During the direct examination of this witness she had, in response to questions by defendant's counsel, testified that she did not see any scratches on plaintiff's face; that she did not see his collar, tie, or shirt torn; did not hear any threats of killing, but had heard plaintiff curse defendant. At this point the following occurred:

"Questions by the Court:

"Q. He didn't hit her on the jaw, did he? A. Oh, no.

"Mr. Morris: Now, wait a minute. We want to take exception to that remark, your Honor. I think that is unfair.

"The Court: I don't care what you think.

"Questions by the Court:

"Q. Did he do anything else to her? A. Oh, no.

"Q. He just cursed her? A. Yes.

"Q. Did he try to shake loose from her? A. No. They just stood there.

"Q. You said he went upstairs? A. They were just halfway up the stairs.

"Q. Were they going up the stairs? A. Well, I expect he was going up the stairs.

"Q. Was she behind him or in front of him? A. That's all I know.

"Q. Did she have hold of him? A. Ahold of his coat.

"Q. Was she in front of him or behind him? A. She was behind him.

"Q. Did she strike at him at any time? A. No, sir.

"Q. Did you see him strike at her at any time? A. No, sir.

"Q. You heard him curse her? A. Yes, sir."

Defendant's counsel saved their exceptions to this action of the court.

It is the settled law of this state that judges of trial courts must refrain from doing or saying anything during the conduct of a trial which would indicate to the jury their belief or disbelief in the credibility of a witness undergoing examination on the witness stand. It has been well said: "Jurors are quick to catch an impression on the mind of the presiding judge, in respect to the evidence or the merits of the cause, and his influence, when thrown into the scale, is of great weight and may be controlling. He cannot, therefore, be too cautious in concealing from the jury his convictions or impressions on all questions which should be left to the jury to decide." Dreyfus v. Railroad Co., 124 Mo. App. 585, 594, 102 S. W. 53, 56. See, also, State v. Davis, 284 Mo. 695, 225 S. W. 707, and the cases therein cited.

A careful examination of the questions asked the witness by the court in the case at...