Schafer v. Ostmann

• Citation: 155 S.W. 1102,172 Mo. App. 602
• Parties: SCHAFER v. OSTMANN.
• Decision Date: 08 April 1913
• Court: Court of Appeal of Missouri (US)

155 S.W. 1102

172 Mo. App. 602

SCHAFER v. OSTMANN.

St. Louis Court of Appeals. Missouri.

April 8, 1913.

1. ASSAULT AND BATTERY (§ 35) — ACTIONS — EVIDENCE.

In an action for damages for an assault, evidence held sufficient to show that defendant and his sons acted in concert in assaulting plaintiff.

2. ASSAULT AND BATTERY (§ 18) — CIVIL RESPONSIBILITY — LIABILITY.

While the mere presence of one at the time an assault is made will not render him guilty, nevertheless one merely ready to aid, if necessary, or encouraging, or actually aiding, the principal offender is as guilty as the latter; consequently where a father, in concert with his sons, assaulted plaintiff, the father is responsible for the acts of his sons in striking and kicking plaintiff — it appearing that the sons were standing by to render aid, if necessary.

3. ASSAULT AND BATTERY (§ 40) — ACTIONS — DAMAGES.

In a prosecution for assault and battery, where it appeared that the plaintiff was a partial cripple, and that defendant, with his sons, assaulted and brutally beat him, an award of $1,200 actual and $1,200 punitive damages was not excessive, in view of the fact that defendant was worth at least $60,000.

4. DAMAGES (§ 181) — EVIDENCE — FINANCIAL STANDING OF DEFENDANT.

In an action for damages for assault and battery, evidence of the financial condition of the defendant is admissible on the issue of punitive damages.

Appeal from Circuit Court, Lincoln County; James D. Barnett, Judge.

Action by Henry L. Schafer against Henry Ostmann, Sr., and others. From a judgment for plaintiff, defendant named appeals. Affirmed.

R. B. Brewer, of New Madrid, and Watts, Gentry & Lee, of St. Louis, for appellant. R. H. Norton and Avery, Young & Killam, all of Troy, and Theodore C. Bruere, of St. Charles, for respondent.

ALLEN, J.

This is a suit by plaintiff, respondent here, for an assault and battery made upon him. The suit was instituted in the circuit court of St. Charles county, in 1905, against Henry Ostmann, Sr., appellant here, and his two sons, William Ostmann and Henry Ostmann, Jr. Thereafter the venue in said cause was transferred from the said circuit court of St. Charles county to the circuit court of Lincoln county, Mo. A trial was had in the latter court, before the court and a jury, resulting in a verdict in favor of plaintiff against defendants Henry Ostmann, Sr., and William Ostmann in the sum of $500 actual damages and $500 punitive damages, a total of $1,000, and judgment was rendered accordingly; plaintiff having in the meantime dismissed as to the other defendant, Henry Ostmann, Jr.

Thereupon the said defendants, Henry Ostmann, Sr., and William Ostmann, duly perfected their appeal from that judgment to this court, where the judgment was reversed and the cause remanded to the circuit court of Lincoln county for a new trial. See Schafer v. Ostmann, 148 Mo. App. 644, 129 S. W. 63. The cause again coming on to be heard in the circuit court, the plaintiff, in the midst of the trial, dismissed as to William Ostmann, leaving Henry Ostmann, Sr., as the only remaining defendant. This second trial resulted in a verdict in favor of plaintiff against said defendant, Henry Ostmann, Sr., for the sum of $1,200 actual damages and $1,200 punitive damages, a total of $2,400. Judgment was entered accordingly, and the defendant, Henry Ostmann, Sr., appeals.

The evidence shows that the plaintiff was assaulted by Henry Ostmann, Sr., March 8, 1904, on a public highway in St. Charles county, about three miles north of the city of St. Charles; and there is evidence that William Ostmann, as to whom the cause was dismissed, participated in the assault. The plaintiff at the time lived upon a farm with his father in St. Charles county, and the defendant lived about one-quarter of a mile distant. William Ostmann was living with his father, and Henry Ostmann, Jr., lived on a nearby farm. Plaintiff at the time was a young man, weighing about 120 pounds, and was somewhat crippled, having, as he testified, had the heel of his left foot mashed off in a land roller when he was quite small. Defendant was about 52 years of age, weighed about 180 pounds, and was strong and vigorous. It appears that some time prior to the day of the assault plaintiff and Henry Ostmann, Sr., had had a controversy of some sort over a plow, and had also had trouble about a fence.

On the day of the assault plaintiff met Henry Ostmann, Jr., in front of the latter's house, on a public road leading to St. Charles. The latter was looking down at a neighboring lake for ducks when plaintiff came up. Plaintiff bade him "Good evening," and he in like manner spoke to plaintiff. Plaintiff asked him what he was doing, and he replied that he was looking down at the Maries Croche Lake to see if he could see any ducks. While plaintiff and young Ostmann were thus talking in a friendly manner, Henry Ostmann, Sr., drove up in a spring wagon and stopped beside them. The latter was coming from St. Charles, and told his son that he had bought some clover seed. The plaintiff then said: "Mr. Ostmann, what did you pay for it?" Thereupon appellant, with an oath, called plaintiff a dirty pup and said, "I don't want to talk to you."

From this point on testimony as to how the assault began differs somewhat from that given by defendant and his two sons. Plaintiff testified that when defendant addressed him in the manner stated above he said to defendant, "I am no more pup than you are;" that thereupon defendant turned around in his wagon, again applied the same oath and epithet to plaintiff, saying, "I have a notion to get out and fix you;" that plaintiff told him to get out if he wanted to, and that he could not scare him (plaintiff), whereupon defendant got out of the wagon, advanced upon plaintiff with further oaths and epithets, and attempted to strike him; that plaintiff threw up his hand, and defendant grabbed him by both wrists and threw him to the ground. Plaintiff testified that defendant then got on top of him, "straddling" him as one would a horse, and began beating him about the face and head; that he called upon defendant to desist and tried to shield his face as best he could with his hands and arms, but that defendant continued to beat him with both fists; that after a time defendant stopped beating him and began to search his pockets, and after doing so again started beating him, striking him a severe blow in the jaw, whereupon plaintiff called out to the others present: "For God's sake, take this man off. Don't let him kill me."

About the time the trouble began William Ostmann came up, and he and Henry Ostmann, Jr., as well as another son of defendant, were looking on. Plaintiff testified that while defendant was still on top of him and beating him William Ostmann kicked him in the face, just beneath his right eye, seriously and painfully wounding and injuring him, and that while he was trying to get up and get away from defendant William Ostmann struck him on the head with a club, which rendered him unconscious; that during all of this time, until he became unconscious, defendant still continued to beat him; and that while he was unconscious his brother, Leonard Schafer, drove up in a buggy. The testimony of both plaintiff and his brother was that the former was unconscious, and was lifted to his feet by his brother, who spoke...