Shellabarger v. Morris

• Decision Date: 04 December 1905
• Citation: 115 Mo. App. 566,91 S.W. 1005
• Parties: SHELLABARGER v. MORRIS.
• Court: Missouri Court of Appeals

91 S.W. 1005

115 Mo. App. 566

SHELLABARGER v. MORRIS.

Kansas City Court of Appeals. Missouri.

December 4, 1905.

1. ASSAULT AND BATTERY—DEFENSE OF PROPERTY.

An owner of an animal straying on the premises of another is not justified in entering on the premises and committing an assault on the person in possession thereof in the effort to recover the animal.

2. DAMAGES—MENTAL ANGUISH AS CAUSE OF ACTION.

Damages for mental anguish arising from breach of contract or negligence are not recoverable, where there has been no physical injury.

3. TRESPASS—WHAT CONSTITUTES.

One maliciously annoying another by means of loud noises, consisting of pounding on tin pans, etc., and thereby injuring the health and business of the latter, is guilty of trespass and liable for the injuries sustained.

4. NUISANCE — PRIVATE NUISANCES — ACTS CAUSING NUISANCE.

Such conduct is a private nuisance, which equity will abate.

Appeal from Circuit Court, Caldwell County; J W. Alexander, Judge.

Action by Emma B. Shellabarger against Mary L. Morris. From a judgment for plaintiff, defendant appeals. Affirmed.

John A. Cross and Johnson & Johnson, for appellant. O. J. Chapman, for respondent.

BROADDUS, P. J.

The plaintiff's cause of action consists of two counts. The first is for assault and battery. The second alleges that defendant, willfully, and maliciously, annoyed, worried, and disturbed plaintiff by loud noises, by screaming, by beating on tin pans, fences, and iron, in consequence of which she was made nervous, and her health was so affected that she could not successfully carry on her business of hand painting and wood carving. Plaintiff recovered judgment on the first count for $300 and the second for $200, from which defendant appealed. Plaintiff and defendant lived on adjoining premises in the town of Hamilton, Mo. Both were engaged in breeding and raising chickens on their respective premises. The plaintiff was also engaged in the business of hand painting and wood carving. The fence separating the premises of the parties proved insufficient to prevent the fowls of the parties from escaping from the grounds of the owners and the mingling of the different flocks. This in time, as a matter of course, created antagonism between the two women. Finally, one day the plaintiff chased and caught a chicken on her grounds, whereupon the defendant appeared on the scene and trouble resulted. Plaintiff's evidence tended to show that defendant assaulted her and struck her on the head under the ear, which permanently injured her hearing. Defendant's evidence tends to show that plaintiff was the aggressor and assaulted defendant. Plaintiff's evidence also tended to prove that the defendant, in a spirit of maliciousness, created many and divers noises for the purpose of annoying plaintiff, and that they had the effect to annoy and make her nervous to such an extent that she could not successfully carry on her business of hand painting and wood carving, which required a steady hand and concentration of the mind, and which also had the effect of injuring her health.

Defendant's first contention is that she had the right to pursue, and use all force reasonably necessary for the recapture of her chicken. In State v. Dooley, 121 Mo. 591, 26 S. W. 558, where the defendant was on trial for an assault with intent to kill, with malice aforethought, it was held that "a man may lawfully defend his property in possession by any degree of force, short of taking life, necessary to make the defense effectual, but he should not resort to means reasonably calculated to endanger life." And in the same case, where "the title to such property being in dispute, the right of recapture is restricted to such force as is reasonably necessary to accomplish the purpose, provided it does not extend to the use of a deadly weapon, or to an assault likely to produce death or great bodily harm." The defendant seems to rely on the principle announced in said case and in that of State v. Evans, 124 Mo. 397, 28 S. W. 8; State v. Forsythe, 89 Mo. 667, 1 S. W. 834. The cases cited do not apply, for the reason that, on the one hand, the property in dispute was not in the possession of the defendant owner, and, on the other hand, the right of the owner to pursue and recapture her property does not include the right to enter the premises of another and commit a breach of the peace for that purpose, unless her property has been stolen or criminally detained by the owner of the premises. In State v. Dooley, supra, defendant's property had been forcibly taken from the possession of his employé, and he pursued the captors and recaptured it on a public highway, which he had a right to do, provided in so doing he did not commit an assault with a deadly weapon likely to produce death or great bodily harm. But as we do not find any authority, nor is there any good reason for holding, that where an owner finds his property on the premises of another, it not having been taken from his possession in violation of the criminal law, he would be authorized to commit a breach of the peace in his effort to recover it. For instance, if the owner's horse should stray upon the premises of another, he would not be justified in entering such premises and committing an assault upon the other in the effort to recover such horse. A different rule would apply from that where the owner is deprived of the possession of his property by force and he pursues the wrongdoer and recaptures it also by force, or where his property has been stolen. The defendant's chicken strayed upon plaintiff's premises, she caught it, and while she was holding it, according to plaintiff's evidence, she said, "I want my chicken," and struck plaintiff on the head. In so doing she commited a breach of the peace, which the law does not justify. And the instruction asked by the defendant and refused by the court, to the effect that she might use "all force and means necessary to recapture her chicken, short of such as she knew would endanger the life of the plaintiff," etc., was properly refused. The rule of law that the owner may use all reasonable force to defend the possession of his property has no application. For, in the defense of one's property the law is very indulgent, and permits at least the use of all reasonable force to repel the aggressor.

The defendant contends that plaintiff's second count does not contain a cause of action. In Deming v. C., R. I. & P. Ry. Co., 80 Mo App. 152, it is held that "a passenger carried by his station and put off in the darkness cannot recover damages for mental suffering and fright, unless such mental anguish is connected with a contemporaneous physical injury, and mere sickness, resulting from fright, worry, and overtaxation of strength after leaving the train, will not justify a recovery of damages for mental suffering." It seems the principle is well established in this state. Trigg v. St. L., K. C. & N. Ry. Co., 74 Mo. 147, 41 Am. Rep. 305; Strange v. Mo. Pac. Ry. Co., 61 Mo. App. 586; Connell v. Telegraph Co., 116 Mo. 34, 22 S. W. 345, 20 L. R. A. 172, 38 Am. St. Rep. 575. In the latter, the court holds that "damages cannot be recovered of a telegraph company for mental suffering and pain caused by its neglect to transmit and deliver a social message promptly, although it is informed by its contents that great mental suffering and pain will naturally result from its failure to do so." Gantt, Judge, who delivered the opinion of the court, discusses the question at some length and reviews many authorities. But the court does not attempt to lay down the rule as applicable...