Traw v. Heydt

• Decision Date: 02 December 1919
• Docket Number: No. 15628.,15628.
• Citation: 216 S.W. 1009
• Parties: TRAW v. HEYDT.
• Court: Missouri Court of Appeals

216 S.W. 1009

TRAW v. HEYDT.

No. 15628.

St. Louis Court of Appeals. Missouri.

Argued and Submitted November 11, 1919.

Opinion Filed December 2, 1919.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

"Not to be officially published."

Action for assault and battery by Addle P. Traw against Helen B. Heydt and husband. Judgment for plaintiff against defendant wife, who appeals. Reversed and remanded.

Anderson, Gilbert & Hayden and M. U. Hayden, all of St. Louis, for appellant.

John K. Lord, Jr., and W. C. Mayfield, both of St. Louis, for respondent.

REYNOLDS, P. J.

Plaintiff commenced this action against John B. Heydt and Helen Heydt, his wife, for damages for an alleged assault on her by the latter. She dismissed as to John B. Heydt and filed an amended petition against Helen B. Heydt, in which she averred that on March 29th, 1916, she was in the employ of defendant as a cook; that on that date defendant wantonly and maliciously, and without just cause, assaulted her and struck and beat her with her hands and with a revolver or other hard object,

"whereby plaintiff was severely bruised and injured; that such assault and beating severely bruised plaintiff's back and caused her great pain and suffering therein; that ever since said assault and beating plaintiff's back has been lame and sore, and she had had almost constant pains in her chest and neck and head; that plaintiff suffered a severe nervous shock from said assault and beating; that as a result of the aforesaid injuries, and the lameness, soreness, pain and nervousness resulting therefrom, plaintiff was wholly unable to perform the work of one engaged as a cook, or in other house service, which is the employment to which plaintiff is accustomed, and in which she is skilled, for a period of over six weeks, and is still unable to perform the full amount of work ordinarily required of one in such employment; that said lameness, soreness, pain and nervousness will continue for a long time to come, and will make it impossible for plaintiff to obtain or accept such, or any other steady employment; that plaintiff has been damaged thereby in the sum of $10,000 actual damages, for which sum, and for $10,000 punitive damages, and for costs of this suit, plaintiff prays for judgment."

The answer, after a general denial, avers that plaintiff had been discharged from the employ of defendant, her service to end on the last of March, 1916; that on March 29th, defendant overheard plaintiff and defendant's husband in a secret conversation, in which they made an agreement to meet on the afternoon of the following day, whereupon defendant ordered plaintiff to leave the room and the house immediately, which she had a right to do, as it is averred; that she gave plaintiff reasonable time to leave; which plaintiff would not and did not do, but instead grabbed defendant by the wrist, sinking her nails into defendant's forearm, leaving a mark which lasted several days; that thereupon defendant, after again ordering plaintiff to leave the room and the house pushed her out of the door and into a stairway, using only such force as would make plaintiff comply with defendant's orders and requests.

There was a reply, generally denying these allegations.

On a trial before the court and a jury, a verdict of $5,000 for actual damages was returned against defendant. No punitive damages were allowed, but as a condition to overruling defendant's motion for a new trial, the court ordered a remittitur of $1,000, which was made, and judgment rendered against plaintiff for $4,000, from which she has duly appealed.

The evidence connected with the assault, as usual, was conflicting, but the verdict of the jury settles the question that the assault was made by defendant. Plaintiff's injuries consisted of bruises, which had disappeared by the time of the trial, and there was evidence that for a while after the assault she exhibited some nervousness, lost some sleep and some weight; but according to the testimony of her own physician, at the time of the trial, she looked about as before; and while she had been out of employment for about seven weeks, losing wages, which had been about $25 a month, she had again gone to work at her avocation of cook and at about her former wages. There is some evidence, but contradicted, that defendant struck plaintiff with a revolver or other hard instrument.

During the course of the trial plaintiff introduced in evidence, over the objection and exception of defendant, a deed conveying certain realty in the city of St. Louis to defendant and her husband, for a consideration of $12,000, the deed made March 7th, 1907; and over the objection of defendant, evidence was introduced tending to prove that the realty was of the value of about $12,000, and was still owned by Mr. and Mrs. Heydt. There was also evidence to the effect that at one time defendant was the owner of 100 shares of stock in some company, on which she had been paid semi-annual dividends of $100; and also that she had some personal property, jewelry, etc. Defendant's testimony was to the effect that she had transferred this stock in trust to a nephew, a minor, but was still receiving the dividends on it, and that money which she had received from the sale of some other stock had long since been spent by her.

At the instance of plaintiff the court gave a number of instructions, among others, instruction No. 2, which told the jury that if they found for plaintiff they should assess her actual damages at such sum as they believed from the evidence will compensate her for the injuries, if any, sustained by her, as shown by the evidence,

"and in estimating such damages you will take into consideration not only the physical injury inflicted, the humiliation and disgrace suffered by plaintiff, the bodily pain and mental anguish endured and suffered by plaintiff, if any, and her inability, by reason of said injuries, if any, to perform her ordinary avocations and work, but you may also allow for such damages as it appears from the evidence, as to the nature and extent of her injuries, will actually and reasonably result to her therefrom in the future, not to exceed, in all, the sum of $10,000."

By instruction No. 4, given at the instance of plaintiff, the court told the jury that if they found and believed from the evidence, that the defendant had wantonly, maliciously and without just cause struck, beat or wounded plaintiff, then in such case, the jury are at liberty,

"in addition to the actual damages sustained by plaintiff, if you find she has sustained actual damages, to assess against defendant additional damages in such sum, not exceeding $10,000, as you may find and believe from the evidence, will serve as an example to prevent the repetition of such conduct of defendant. In assessing plaintiff's damages, if any, you are authorized to take into consideration the condition in life of both parties and the nature of their business, their financial condition and their position in society. You will state the amount of actual and exemplary damages awarded separately in your verdict, if you so find."

The court of its own motion instructed the jury

"that the defendant had the right to discharge the plaintiff with or without cause and paying plaintiff her wages, and it was the duty of the plaintiff, upon defendant's request, to leave the house of defendant within a reasonable time and in a peaceable manner."

The court refused an instruction (No. 2), asked by defendant, to the effect that defendant had the right to discharge the plaintiff with or without cause

"and without paying the plaintiff her wages, and that it was the duty of the plaintiff, upon defendant's request, to leave the house of defendant at once in a peaceable manner."

We have italicized the portion of the several instructions criticized.

The errors...