Wells v. Lea

• Decision Date: 25 January 1886
• Citation: 20 Mo.App. 352
• Parties: JAMES M. WELLS, Appellant, v. THOMAS LEA, Respondent.
• Court: Kansas Court of Appeals

20 Mo.App. 352

JAMES M. WELLS, Appellant, v. THOMAS LEA, Respondent.

Court of Appeals of Missouri, Kansas City.

January 25, 1886

APPEAL from Putnam Circuit Court, HON. ANDREW ELLISON, Judge.

Reversed and remanded.

The case is stated in the opinion.

A. W MULLINS, with A. D. CHRISTY, for the appellant.

I. The court erred in directing that there was no evidence that defendant assaulted plaintiff's wife. It left out of view an assault by another who was acting at his instigation.

II. Defendant's second instruction was wrong because defendant did not set up any matters in justification in his answer. " Justification must always be specially pleaded." 2 Greenl. Evid. (14 Ed.) sect. 92; 1 Chitty Plead. (14 Am. Ed.) 501; Daily v. Houston, 58 Mo 361.

III. Plaintiff's instruction numbered three should have been given. Defendant was a joint wrong-doer with another, and in such case was a principal, also. Cooley on Torts, 127; 1 Suth. Dam. 211; Murphy v. Wilson, 44 Mo. 313.

HUGH MARSHALL and S. P. HUSTON, for the respondent.

I. The court did not err in giving defendant's second and in refusing plaintiff's fourth instruction. Under a general denial anything is admissible that goes to show that a cause of action never existed. If a cause of action once existed, which has been determined by some matter subsequently occurring, it must be pleaded. Greenway v. James, 34 Mo. 326; Kersey v. Garton, 77 Mo. 647; Nichols v. Winfrey, 79 Mo. 544.

II. In construing the record, all parts must be considered equally authoritative. Error is not to be presumed, but all presumptions are in favor of the judgment. There was no evidence on the second count. Ins. Co. v. Cohen, 9 Mo. 416.

ELLISON J.

This is an action for damages for assault and battery. The petition contained two counts, the first charging that the defendant and one Sarah Morris (since intermarried with defendant) assaulted, beat, cut, and bruised the plaintiff. The second charging defendant and said Sarah Morris with assaulting, beating, and bruising plaintiff's wife, whereby she was disabled, and he lost her service for a long space of time. The answer was a general denial, with the exception of admitting plaintiff and Alice M. Wells were husband and wife.

The evidence offered on the trial, as preserved and set forth in the bill of exceptions, was as follows:

" The plaintiff, to sustain the issues on his part, offered evidence tending to prove the issues on his part; and the defendant offered (evidence) tending to disprove the same. And the defendant, to further sustain the issues and disprove the evidence offered by plaintiff, on his part offered evidence to show that Sarah Morris was his servant in his employ at work for defendant, and that plaintiff and his wife, in his presence, assaulted and beat her; and that he then, to protect the said Sarah Morris from further abuse, struck plaintiff with his fist, using no more violence than was necessary to prevent further injury to said Morris. This, the

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