Riepe v. Green

• Decision Date: 04 December 1933
• Docket Number: No. 17749.,17749.
• Citation: 65 S.W.2d 667
• Parties: RIEPE v. GREEN.
• Court: Missouri Court of Appeals

65 S.W.2d 667

RIEPE v. GREEN.

No. 17749.

Kansas City Court of Appeals. Missouri.

December 4, 1933.

Appeal from Circuit Court, Sullivan County; Paul Van Osdol, Judge.

Action by J. F. Riepe against Robert J. Green. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

G. Derk Green, of Marceline, for appellant.

Scott J. Miller and Frank L. Arthaud, both of Chillicothe, for respondent.

SHAIN, Presiding Judge.

This action, wherein J. F. Riepe is plaintiff and Robert J. Green is defendant, is an action for personal injuries alleged to have been received by plaintiff by willful, wrongful, and unlawful assault committed on his person by the defendant. Both actual and punitive damages are asked.

The defendant pleads justification based upon the doctrine of self-defense. The petition asks for $2,000 actual, and $2,000 punitive, damages.

Trial was by jury, and the jury found issues for the plaintiff, and assessed actual damages at $210 and punitive damages at $500. Judgment was entered in accordance thereto, and defendant duly appealed.

Opinion.

This cause originated in Linn county, Mo., and on change of venue was sent to Sullivan county, where trial was had.

The record of evidence in this case is in part presented by question and answer and in part by narrative form. The part shown by question and answer is so replete with such inexcusable and unnecessary objections and remarks of defendant's counsel as to be inducive of confusion and should not be permitted in a court of justice. As an example, while Dr. Patrick was on the witness stand, there were fifty-nine questions asked him and forty-five objections interposed. It is safe to say that three well-directed objections would have more clearly saved every right of the defendant than the record now shows. As a pitcher too often taken to the well is broken, so objections too often made bring confusion that often incites prejudice even against the cause of the client. It generally follows that the one causing the confusion is the first to complain and does the loudest complaining. However, every defendant is entitled to a fair and impartial trial, and it becomes our duty to carefully study the record to determine that issue.

The defendant is almost as prolific in his presentations of allegations of error as he was in his objections made. The motion for a new trial presents twenty-seven specifications of error.

In the brief, however, under the head of "Points and Authorities," only twenty points are set forth.

Defendant's specifications to the introduction of evidence stated in narrative form are:

It was error to permit examination of the plaintiff by Dr. Patrick before the jury while he was testifying and to permit the doctor to testify as to how much the plaintiff owed him. The evidence should not have been admitted of defendant's wealth, especially so where not limited to time of trial. It was error to permit counsel for plaintiff to argue to jury about defendant's wealth and transfers of his property; to permit repeated showing of clothing to jury, also to permit its introduction in evidence; to permit witnesses to state that plaintiff did not get back to normal; to permit evidence of loss of time of plaintiff; and to refuse evidence of previous altercations continuing down to difficulty involved.

Defendant's ninth specification is that the verdict was against the weight of the evidence.

Defendant's specifications 10 to 16, inclusive, present specific objection to each of the eight instructions given on behalf of plaintiff.

Defendant's specifications 17 to 19, inclusive, present specific objection to refusal of the court to give instructions B, C, D, E, and F offered by defendant.

Specification 20 is: "The instructions given were in conflict and confusing to the jury."

We first give consideration to the questions raised as to instructions. The instructions given, when taken together, are clear enunciations of the law that cover all issues presented, if it be concluded that there is evidence in support. The refused instructions were properly refused without question, except as to D, which we discuss later.

Taken as a whole, there is but one question as to the instructions, and that is, Does the evidence justify the submission of punitive damages? This we discuss below.

As to the admission of evidence, we conclude that the court let the examination of the plaintiff by the doctor before the jury and the display of plaintiff's clothing before the jury go too far. The rule in that respect is, that it is proper to permit the injury of a plaintiff to be exhibited to the jury, but it is improper to permit a demonstration before the jury. Willis v. Browning, 161 Mo. App. 461, 143 S. W. 516; Meyer v. Johnson, 224 Mo. App. 565, 30 S.W.(2d) 641.

In considering the above point in its application to this case, we take into consideration that, while the plaintiff was before the jury, the defendant's counsel made thirty-six objections when one would have sufficed. The counsel's needless repetition of objection undoubtedly tended to make the scene more or less one of demonstration. It is unfortunate that the permitting of such unnecessary procedure must be charged up against the court as error.

Referring back to the question of punitive damages, the defendant raised issue by objection as to submission as shown in plaintiff's instruction No. 6 and by refusal of defendant's instruction D. As to the issue of punitive damages, we conclude that plaintiff's own testimony is very pertinent. We therefore set out such of his testimony as we conclude is germane to the issue, just as it appears in the record:

"Witness, on cross examination, said that he was a strong, robust, healthy man, nothing wrong with him that he knew of; forty-one years of age, weighed 145 lbs., active and in good condition. He had known defendant about a year, did not know how old defendant was, but was considerably older than plaintiff; first met defendant on Main Street in...