Thummel v. Surplus

• Decision Date: 19 December 1914
• Docket Number: No. 16652.,16652.
• Citation: 171 S.W. 929
• Parties: THUMMEL v. SURPLUS.
• Court: Missouri Supreme Court

171 S.W. 929

THUMMEL v. SURPLUS.

No. 16652.

Supreme Court of Missouri, Division No. 1.

December 19, 1914.

1. APPEAL AND ERROR (§ 882) — QUESTIONS REVIEWABLE — INVITED ERROR.

A party inviting by requested instructions the submission of an issue may not complain of the submission.

2. ASSAULT AND BATTERY (§ 31) — SELF-DEFENSE — ACTS CONSTITUTING.

The jury, in determining whether language used by plaintiff suing defendant for assault and battery was violent and threatening, may consider the acts and gestures accompanying the language and the culmination in immediate violence, and determine whether the language gave defendant reasonable ground to believe that plaintiff, in striking him, intended to do him bodily harm.

Appeal from Circuit Court, Nodaway County; Wm. C. Ellison, Judge.

Action by A. A. Thummel against John T. Surplus. From a judgment for defendant, plaintiff appeals. Affirmed.

Cook, Cummins & Dawson, of Maryville, for appellant. Shinabargar, Blagg & Ellison, of Maryville, for respondent.

BROWN, C.

Suit for damages from assault and battery committed July 22, 1907. The defense pleaded was son assault demesne. The evidence showed that the plaintiff and defendant were both farmers and neighbors living in Nodaway county. In addition to the farm on which he was living, the plaintiff had another near by, upon which a woman named Mrs. Jocelyn had been living that summer and had planted a vegetable garden, which contained some potatoes which had attained the esculent age. Mrs. Jocelyn being about to leave this particular field of her activities, Mrs. Surplus, the wife of defendant, negotiated with her for the potatoes, and the week before the trouble, which occurred on Monday, she saw Mr. Thummel, who told her it would be all right for her to buy them, which she did, completing the transaction and paying for them on Saturday. Monday morning she took the notion that she wanted some new potatoes for dinner. Taking a hoe and a sack she got on her horse and rode over to the Thummel farm, a mile away, hitched her horse at the gate, and, with hoe and sack, went into the yard, where Mr. Thummel met her. She told him that she had bought the potatoes on Saturday and had come over to dig some. He told her that he had traded some chickens for them on Friday. The delicate courtesy that may have attended the giving and receiving of all this information does not appear, as Mr. Thummel in his testimony confines himself to an unembellished statement of what he seems to consider the important facts, while Mrs. Surplus did not testify. Mr. Thummel, however, grows more interesting and circumstantial in his relation of the subsequent proceedings. He says Mrs. Surplus went home, and that soon afterward Mr. Surplus rode up. He met him at the garden gate and said, "Good morning, Mr. Surplus." The latter did not condescend to answer, but, without saying a word, got down from his horse, took something from his pocket that he thought was steel or iron, perhaps a cold chisel or something or other, and struck him over the eye, which knocked him cold the first lick. When he came to, Mr. Beattie and Mr. Antrim, who had been plowing corn in the field near by, had brought some water and were washing his face. He was a sight; "just blood from head to foot." He had nine gashes of different sizes and depth about his head and face; one eye was just about closed; his jaw was hurt; his ribs felt like they were knocked loose from his backbone; the whole hide was knocked off his hand; two teeth were out, and another was so badly jarred that he said it was still loose at the trial.

Mr. Surplus' tale of the same occurrence was that his wife came home crying, and he got on his horse and went over to get the potatoes. Mr. Thummel met him at the gate. They spoke to each other, and Mr. Surplus said he came to get some of the potatoes and asked him why he wouldn't let the woman dig them. Mr. Thummel said that "the old lady owed him and didn't pay him; went off and never paid him the money." Mr. Surplus said he came up after the potatoes and was going to have them, was going to dig them, and got off and took the sack with him. Mr. Thummel stepped right up and said, "No; you won't dig them." He then drew back, and Mr. Surplus did likewise. They both struck; Mr. Surplus getting in his blow with such force that it knocked Mr. Thummel down. He rose to a sitting posture, and Mr. Surplus struck him two or three times more. He declined to swear that he did not kick him, but said he did not think he did. He said he would not have hit Mr. Thummel if the latter had not attempted to strike him first, and that he had nothing in his hands, but used his naked fists.

Mr. Thummel's statement as to the character of his injuries was very much modified by his doctor, while his own character was considerably modified by evidence introduced for that purpose. Mr. Surplus admitted that after the trouble he had...