Schafer v. Ostmann

• Citation: 129 S.W. 63,148 Mo. App. 644
• Parties: SCHAFER v. OSTMANN et al.
• Decision Date: 17 May 1910
• Court: Court of Appeal of Missouri (US)

129 S.W. 63

148 Mo. App. 644

SCHAFER v. OSTMANN et al.

St. Louis Court of Appeals. Missouri.

May 17, 1910.

1. ASSAULT AND BATTERY (§ 43) — CIVIL RESPONSIBILITY — INSTRUCTIONS.

In an action against two defendants for an assault and battery, an instruction as to each defendant, permitting recovery against him alone, whether he acted independently or in concert with his codefendant, but omitting to inform the jury that a joint verdict could not be given against both defendants, unless there was concert of action between them, was erroneous.

2. ASSAULT AND BATTERY (§ 18) — JOINT TORT-FEASORS — JOINT OR SEVERAL LIABILITY.

In cases of willful tort, as assault and battery, there is no joint liability, unless there is concert of action between those who are charged jointly.

3. TRIAL (§ 296) — INSTRUCTIONS — CURE BY OTHER INSTRUCTIONS.

In an action for assault and battery, instructions permitting recovery against each defendant if he acted independently, and omitting to inform the jury that no joint verdict could be given against both defendants unless there was concert of action between them, were not cured by an instruction that humiliation and disgrace were competent matters to be considered, if caused by the acts of defendants acting independently or in concert, and that if the assault was made by defendants in concert, or either of them, exemplary damages could be allowed, etc.

4. TRIAL (§ 296) — INSTRUCTIONS — CURE BY OTHER INSTRUCTIONS.

In an action for assault and battery against two defendants, instructions permitting a recovery against each defendant, even if he acted independently, without informing the jury that no joint verdict could be given against both defendants, unless there was concert of action between them, were not cured by an instruction directing the form of the verdict to be returned, if it be found that the two defendants acted in concert and maliciously made the assault.

5. DAMAGES (§ 91) — EXEMPLARY DAMAGES — GROUNDS.

Exemplary or punitive damages are allowed in actions of tort, accompanied with circumstances of malice, wantonness, etc.

6. DAMAGES (§ 181) — EVIDENCE — ADMISSIBILITY — PECUNIARY CIRCUMSTANCES OF DEFENDANT.

In an action of tort, accompanied with circumstances of malice, wantonness, etc., it is competent to show the financial standing of defendant, to the end of meting out a proper punishment.

7. DAMAGES (§ 181) — EVIDENCE — ADMISSIBILITY — PECUNIARY CIRCUMSTANCES OF DEFENDANT.

In an action for assault and battery against two defendants jointly, evidence of the pecuniary condition of one of the defendants alone is not admissible.

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

Action by Henry Schafer against Henry Ostmann, Sr., and another. From a judgment in favor of plaintiff, defendants appeal. Reversed and remanded.

R. L. Sutton and Wm. H. Clopton, for appellants. Theodore Bruere and Avery, Young & Woolfolk, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff as a result of an alleged assault and battery made upon him by defendants. Plaintiff recovered, and defendants appeal.

The evidence tended to prove that plaintiff was assaulted by defendant Henry Ostmann, Sr., and his son, William Ostmann, in the public road without just provocation. As a result, plaintiff received a severe beating at the hands of both defendants. The elder Ostmann used his fists, and the younger Ostmann a club, in inflicting the punishment. It seems a controversy arose first between plaintiff and Henry Ostmann, whereupon Henry Ostmann felled plaintiff to the ground and got upon him. While plaintiff and Henry Ostmann were in this posture, William Ostmann hit plaintiff one or more blows with a club. The jury awarded plaintiff $500 actual damages and $500 punitive damages against both defendants. It is not entirely clear, however, whether this verdict was given on the theory that defendants were joint tort-feasors, or on the theory of an independent liability against each for his wrongful conduct in the premises.

The instructions given by the court at the instance of plaintiff in no just sense required the jury to find that defendants acted in concert, but, on the contrary, confused the issue with respect to this matter. By instruction No. 3 for plaintiff the court permitted a recovery against defendant Henry Ostmann alone, even though he acted independently and without concert with his codefendant, William Ostmann. The instruction referred to substantially directed the jury that, if it found Henry Ostmann assaulted and beat plaintiff without cause therefor, "then the jury will find a verdict against the defendant Henry, irrespective of whether he did or did not act in concert with defendant William, and assess such damages," etc. Instruction No. 4 for plaintiff substantially directed the jury that a verdict might be returned for plaintiff against defendant William Ostmann, if it appeared he assaulted and beat plaintiff without just cause, even though the jury believed he did or did not act in concert with defendant Henry Ostmann.

We believe these instructions were erroneous in the form given, for they omitted to inform the jury that in no sense could a joint verdict be given against both defendants, unless there was concert of action between them. The theory of these instructions is that each defendant is liable to respond individually to plaintiff for his wrongful conduct in the premises, notwithstanding there may have been no co-operation between the Ostmanns and no concert of action on their part. No doubt the doctrine is sound enough, if perchance the finding was against one only; but to authorize a joint recovery, as was had here, the jury must find as a fact that there was concert of action between the defendants. For intentional torts committed independently by different tort-feasors impose no joint liability, even though their combined influence may result in an injury to the plaintiff. Barton v. Barton, 119 Mo. App. 507, 531, 94 S. W. 574; Kinkead on Torts, §§ 44, 45, 46. The...