Sklebar v. Downey

• Decision Date: 01 June 1926
• Parties: VICTORIA SKLEBAR, RESPONDENT, v. STEVE DOWNEY, APPELLANT.
• Court: Missouri Court of Appeals

285 S.W. 148

220 Mo.App. 5

VICTORIA SKLEBAR, RESPONDENT, v. STEVE DOWNEY, APPELLANT.

Court of Appeals of Missouri, St. Louis

June 1, 1926

Appeal from the Circuit Court of Franklin County.--Hon. R. A Breuer, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

James Booth and Virginia J. Booth for appellant.

(1) The rule is well settled in this country generally that the judgment or proceedings in a criminal case constitute no proof in a civil action involving the same facts. 34 Cor Jur. sec. 1387, p. 970; Myers v. Casualty Co., 123 Mo.App. 690; Bennett v. Life Assurance Corporation, 255 S.W. 1077; Womach v. City of St. Joseph, 201 Mo 467. (2) It is the rule and law that it is error to admit proof of facts not pleaded. Brooks v. Blackwell, 76 Mo. 309; Steckman v. Railroad, 178 Mo.App. 378; Degonia v. Railroad, 224 Mo. 589. (3) Instructions cannot be broader than the pleadings, but must be within the purview of both pleadings and evidence. Degonia v. Railroad, 224 Mo. 589.

W. L. Cole for respondent.

(1) The plaintiff first contends that the court erred in admitting the record of a criminal proceeding had against defendant for the shooting alleged in this petition. The facts are, as shown by the record, that upon the trial of the criminal case in the justice court, the jury convicted defendant and assessed his punishment at a fine of $ 1, and the defendant appealed to the circuit court, and when the case was called at the March Term, 1925 of Franklin county circuit court, the trial proceeded until the State had concluded its evidence, whereupon the defendant dismissed his appeal and accepted the punishment assessed in the justice court. The plaintiff, in the civil action, introduced this record on the theory that the dismissal of his appeal by the defendant after the State's testimony had been offered, was equivalent to a plea of guilty, and for that reason was admissible as evidence in the civil action. Corwin v. Walton, 18 Mo. 71; Buckley v. Knapp et al., 48 Mo. 162; Gray v. McDonald, 104 Mo. 310; Freidenheit v. Edmundson et al., 36 Mo. 231; Myers v. Casualty Co., 123 Mo.App. 690; Omohundro v. Emerson, 80 Mo.App. 316; Baldwin v. Fries, 46 Mo.App. 295; 31 A. L. R. 278 n.; A. L. R. 775 n.; 16 A. L. R. 798 n.; 2 Taylor on Evidence, 1115. (2) Appellant's second contention is that the court erred in admitting evidence of the fact that plaintiff had never been able to work since her injury, because the petition failed to ask for damages for lack of services. The evidence was offered simply to show the extent of the plaintiff's injury and not for the purpose of claiming damages for loss of time. (3) The defendant's third contention is that the trial court erred in giving to the jury plaintiff's instruction No. 1, authorizing the jury to allow her compensation for bodily pain and mental anguish on the theory that the petition did not ask for same. The petition is worded as follows: "Inflicting wounds upon the body, face and hands of plaintiff, whereby she was bruised and maimed and injured, resulting in severe nervousness, lack of sleep and bodily pain and mental anguish." Appellant contends that this pleads a lack of bodily pain and mental anguish. We think this contention is too ludicrous and ridiculous to challenge the attention of the court, as the purpose of the pleader is plain and the claim of plaintiff is that this shooting resulted in severe nervousness resulted in lack of sleep and resulted in bodily pain and mental anguish, and no other reasonable construction could be placed upon the petition, and the language of the instruction complained of is identical with that of the petition.

DAUES, P. J. Becker and Nipper, JJ., concur.

OPINION

DAUES, P. J.

This is an action for damages, in which the petition alleges that defendant wantonly and maliciously assaulted plaintiff and shot and wounded her with a shotgun. There was a verdict and judgment for plaintiff for $ 1000 actual, and $ 500 exemplary damages. The defendant appeals.

The pleadings are not questioned. The defendant concedes that the evidence is sufficient to make a prima-facie case for plaintiff. The assignments of error go to the misreception of evidence, and the instruction on the measure of damages.

Briefly, the facts are that plaintiff and defendant occupied adjoining farms in Franklin county, Missouri, and considerable enmity had engrasped them on account of litigation over a roadway.

Plaintiff's evidence is that she was shocking corn in the field on the day named, and that defendant approached her and quarreled with her, and then went to his house, got a shotgun and shot her, inflicting wounds.

The defendant stoutly denied that he either shot or attempted to shoot plaintiff, and introduced evidence tending to prove that plaintiff's injuries, however caused, were minor.

At the trial, and to support plaintiff's case in chief, plaintiff introduced in evidence the transcript of the justice of peace which showed that defendant had been tried and convicted before a jury and fined $ 1 and costs for the identical acts complained of in the petition. When this record was offered in evidence, the defendants strenuously objected to its admissibility on the ground that same was not admissible because plaintiff was not a party to the prosecution of the defendant i...