Williams v. Williams

• Decision Date: 08 June 1908
• Citation: 132 Mo. 266,111 S.W. 837
• Parties: WILLIAMS v. WILLIAMS.
• Court: Missouri Court of Appeals

111 S.W. 837

132 Mo. 266

WILLIAMS v. WILLIAMS.

Kansas City Court of Appeals. Missouri.

June 8, 1908.

Rehearing Denied June 29, 1908.

1. ASSAULT AND BATTERY—CIVIL LIABILITY— ACTIONS—INSTRUCTIONS.

In an action for assault, where defendant admitted that he entered plaintiff's premises as a trespasser, intent on taking possession by force, and that, in the accomplishment of his purpose, he met plaintiff's opposition by taking hold of her and overcoming her by superior physical force, it was proper for the court to treat the charge of assault as proved, and to submit no other issues than those relating to damages.

2. TRIAL—INSTRUCTIONS—DAMAGES.

In an action for assault, where it was conceded that defendant entered plaintiff's field as a trespasser, and, when plaintiff attempted to prevent his plowing it, he forcibly pulled and dragged her from in front of the horses, and threw or caused her to fall to the ground against her utmost resistance, it may be presumed that physical injury to some extent was sustained by her, and defendant cannot complain of instructions because they assume that plaintiff sustained physical injury for which she should be allowed compensatory damages.

3. ASSAULT AND BATTERY — DAMAGES — EXCESSIVE DAMAGES.

Plaintiff, 64 years old at the time of an assault, had been a cripple from childhood. Defendant entered her field to plow, against her will, and, upon her attempt to prevent it, he seized her by the arms and pushed her from the path of the teams, and she was thrown or fell to the ground. While she received no broken bones, bruises, or abrasions from the encounter, she suffered physical pain from the assault, and the evidence tended strongly to show that her leg and hip were seriously injured, from which she had not fully recovered at the time of trial. Held, that a recovery of $900 was warranted.

Appeal from Circuit Court, Bates County; Charles A. Denton, Judge.

Action by E. A. Williams against J. M. Williams for assault. Judgment for plaintiff and defendant appeals. Affirmed.

Silvers & Silvers, for appellant. W. O. Jackson and T. J. Smith, for respondent.

JOHNSON, J.

It is alleged in the petition that "defendant unlawfully, willfully, and maliciously assaulted and beat plaintiff by angrily catching hold of her and violently throwing her on the ground, by reason of which she has suffered and still suffers great bodily pain and mental anguish; that said assault injured plaintiff's right hip, and shocked her whole system, and made her sick, sore, and lame." The prayer is for both compensatory and punitory damages. The answer on which the cause went to trial was a general denial. Verdict was for plaintiff in the sum of $900 actual and $500 exemplary damages, but she afterward entered a remittitur for the amount of the exemplary damages. Motion for new trial then was overruled, and defendant appealed.

Plaintiff, an unmarried woman, was 64 years of age at the time of the assault, and had been a cripple from childhood. She occupied a farm of 120 acres, and was having a field plowed. Early one morning defendant, her brother, entered the field with teams, plows, and hands, and began plowing where plaintiff's plowman had left off the evening before. Plaintiff testified: "I walked right down the furrow meeting his team. I told him he had no right in there. I believe I told him he had no right—I would not be confident about that—until the sheriff had put me off. I told him something about that, having no right in there. * * * He answered me with an oath, and told Dean, the man that was with him, to take me away from there. I told him not to touch me. He then called to Dean to take his team or plow—I don't know which he said, don't remember the words. He then came around and caught me by both arms, * * * and throwed me out to the right. I was meeting him going north, and he was going south with his team. * * * He threw me, and, as I fell, I struck on my lame foot, and my hip is out of place and it is stiff; and my knee, of course, bent and doubled under me and I fell and struck my shoulder on the ground. I was thrown on the plowed ground, because I remember putting my hand in the plowed ground when I got up. I don't know just how far I fell. It was a terrible fall, it seemed to me. He threw me with all the force of a madman. * * * It hurt me very bad, but in the excitement I didn't pay much attention to it. I tried to stop him again as he came around. I didn't sit down in the furrow. * * * I got before the team somehow. He got down and took me by the foot, and turned me around in the furrow; but I wasn't sitting down in the furrow. He pushed me and shoved me down someway, I don't know just how. Then the third time I wasn't in front of the team at all, as he passed me, one of the horses shied at me a little, and he gave me a shove, and a push and sent me over again. It was the first fall that hurt me so." Plaintiff is supported by other witnesses, and from the evidence introduced by her it appears that defendant entered her farm and began cultivating it without her consent, and, when she protested and attempted to stop him, he angrily seized her by the arm and violently threw her out of the way of his teams, and went on with his self-appointed task. Defendant, in his testimony, admits having entered the farm against the will of plaintiff, and that he intended to and did employ physical force to overcome her opposition, but he denies he used any more force than was necessary to remove her from the path of the teams, or that he threw her to the ground. He says he seized her by the arms and pushed her aside, and, when released, she fell down. Plaintiff received no broken bones, bruises, or abrasions from the encounter, but, whether she fell...