Spangler-Bowers v. Benton
| Decision Date | 04 March 1935 |
| Citation | 83 S.W.2d 170,229 Mo.App. 919 |
| Parties | ELVIRA SPANGLER-BOWERS, DEFENDANT IN ERROR, v. FRANK BENTON ET AL., PLAINTIFFS IN ERROR |
| Court | Kansas Court of Appeals |
Error to the Circuit Court of Jackson County.--Hon. Thomas J Seehorn, Judge.
AFFIRMED.
Judgment affirmed.
Charles N. Sadler and Ed A. Harris for defendant in error.
Thurman L. McCormick and Wm. Walter Brady for plaintiffs in error.
This case is here on a writ of error sued out by defendants in the trial court to recover a judgment rendered upon a verdict of the jury in favor of plaintiff assessing $ 1500 actual and $ 250 punitive damages.
The case, as now presented, was set for hearing in the appellate court on Friday, December 7, 1934, and argued and submitted on that day. On November 16, 1934, the abstract and brief of plaintiffs in error were, under our Rule 15, duly served on defendant in error twenty days before the case was set and the required number of copies thereof were filed in this court on November 20, 1934, and defendant in error served on plaintiffs in error copy of her brief, points and authorities, together with her "additional abstract" on the opposite parties on the 28th of November, 1934; so that the abstracts and briefs of both sides were served and filed in proper time for this presentation on writ of error.
The defendant in error raises the point that "the bill of exceptions was not filed within the time provided by law and hence, there is nothing before this court except the record proper." The abstract of the plaintiffs in error shows that the bill of exceptions was filed on July 21, 1934.
Since the Act of 1911 (Session Acts 1911, p. 139) amendatory of the statute (now Section 1009, Revised Statutes of Missouri, 1929), it has been sufficient to file the bill of exceptions at any time before the abstract of record in this case on writ of error is required to be filed. It is conceded that the Supreme Court has held that said Act of 1911 applies to cases on writ of error as well as to those on appeal. Moreover, our Rule 15 provides that in case No such motion or objections were ever filed at any time, and even the objection raised for the first time in the brief of defendant in error was not served until after the ten days required by our Rule 15 had expired. Under said Rule 15 the objection or point must be deemed to have been waived and cannot be considered.
After the case was heard on December 7, 1934, at the close of the argument, the court allowed plaintiffs in error fifteen days in which to file reply briefs and they were filed within that time. On January 5, 1935, some fifteen days or more after the reply briefs were filed, defendant in error filed motion to strike out said reply briefs on the ground that such briefs have made new assignments of error not contained in the original brief.
An examination of the original briefs filed by plaintiffs in error and a comparison thereof with the reply briefs filed by them, leads to the conclusion that no effective assignments of error or points have been raised in said reply brief that were not in fact raised in the original brief. Some of them may be, perhaps, subdivided and stated with more particularity than in the original brief, and some are in answer to matters raised in the briefs and argument of defendant in error. No complaint was made in the brief of defendant in error that any point raised in the original briefs of plaintiffs in error was insufficient to call the court's ruling thereon, or not plainly enough made to afford defendant in error an idea of what the point raised was about. And while the court reserves to itself the right to disregard any point so insufficiently, or so generally, stated that it cannot be known what is the point raised or complained of except by patient investigation and careful study of the record, yet the only penalty expressly provided in Rule 17 (except possibly Rule 18) for lack of definiteness or specification in an assignment of error, is that "no reference will be permitted in the oral argument to errors not thus (distinctly) specific." The motion to strike out the reply brief is overruled, and likewise the motion of plaintiffs in error to strike out the motion of defendant in error attacking the reply brief, is also overruled. After thus spending a few moments in disposing of the preliminary fencing of the opposing combatants, we proceed now to consider and to dispose of the real fight between them.
The action is one for damages for an alleged assault on plaintiff at her home, charged to have been made violently and maliciously by defendant, Benton, while performing his work as agent for his codefendant, the Singer Sewing Machine Company, a corporation, in seeking to obtain, and obtaining, the immediate delivery of a sewing machine to them which had been delivered to plaintiff's home and placed in her charge. The case was, at all times, tried on an amended petition filed December 10, 1928, in the Circuit Court of Jackson County, Missouri, at Independence. The abstract of plaintiffs in error discloses no record, or statement as a part of the abstract, of any trial of the case or judgment rendered therein at Independence on February 13, 1931, or at any other time. The "additional" abstract filed by defendant in error (plaintiff in the case) shows only that on December 5, 1932, the defendant Singer Sewing Machine Company applied for, and the sixth obtained, a change of venue from the judge of the Independence Division of said court and the cause was, on said last named date, sent to Division No. 9 of said court at Kansas City in said county. Said additional abstract next shows a record of an order in Division No. 9, made December 15, 1932, reciting that a jury in said cause after retiring to further consider of their verdict and after due deliberation, reported into court that they were unable to agree, whereupon they were discharged.
The amended petition shown in the abstract of plaintiffs in error (defendants in the trial court) alleges:
That plaintiff therein purchased of the defendant Singer Sewing Machine Company, a corporation, a sewing machine which had been delivered to her home and placed in her charge; that on or about June 5, 1927, said defendant, through its agent and employee, the defendant, Frank Benton, caused said Benton "to come to plaintiff's home and make demand for the delivery of said sewing machine to their immediate possession;" that plaintiff remonstrated with said Benton about delivering said machine, whereupon said Benton, for himself and in behalf of the said corporation, "became insistent that the plaintiff comply with his request for the delivery of said machine and did thereupon place his weight against plaintiff's door and did wrongfully overpower the plaintiff and did wrongfully and with force and violence enter plaintiff's home against her protests and took possession of said machine and began dragging it from plaintiff's home. That in entering plaintiff's home the said defendant, Frank Benton, caused the door thereof through which he passed to come in violent contact with plaintiff's body and caused plaintiff's body to be struck with great force and violence; that during said time Frank Benton did curse and abuse the plaintiff and did address himself to the plaintiff in a loud and boisterous manner, and did exhibit great anger and hatred toward the plaintiff; that plaintiff was helpless in said situation, being alone at the time; that the defendant, Frank Benton, was a strong and able-bodied man, and plaintiff was powerless against the strength of defendant, Frank Benton; that during said occurrence the said Frank Benton did repeatedly threaten plaintiff with arrest, and plaintiff was greatly excited and put in great fear of her safety; that plaintiff thereupon became violently ill, she at said time being in an advanced stage of pregnancy, and did become greatly excited and did thereupon experience great physical pain and mental anguish; that shortly after the defendant, Frank Benton, left her home, she began suffering from a vaginal hemorrhage and did suffer great physical pain and mental anguish and she did thereafter continue to suffer from said vaginal hemorrhage and did thereafter as a direct result of the wrong complained of suffer a miscarriage of the fetus she was carrying; that she did lose much blood and she did suffer much pain and mental anguish.
And the petition further stated "that because the conduct of the defendant was willful, wanton and malicious, plaintiff prays punitive and exemplary damages in the sum of $ 10,000."
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