Wills v. Sullivan

• Citation: 242 S.W. 180,211 Mo. App. 318
• Decision Date: 12 June 1922
• Docket Number: No. 14358.,14358.
• Parties: WILLS v. SULLIVAN.
• Court: Court of Appeal of Missouri (US)

242 S.W. 180

211 Mo. App. 318

WILLS v. SULLIVAN.

No. 14358.

Kansas City Court of Appeals. Missouri.

June 12, 1922.

Appeal from Circuit Court, Pettis County; H. B. Shain, Judge.

Suit by Harold Wills against Antoinette Sullivan. Judgment for plaintiff and defendant appeals. Affirmed.

W. D. Steele, George F. Langan and D. E. Kennedy, all of Sedalia, for appellant.

Holmes Hall and W. D. O'Bannon, both of Sedalia, for respondent.

ARNOLD, J.

This is a suit in damages for assault. The petition contains four counts, each of which prays damages for an assault made upon plaintiff by defendant.

Defendant is the wife of Dan Sullivan, a farmer residing near Lamonte, in Pettis county, Mo. Plaintiff is an orphan, who was born in the city of New York, and who, together with his brother, George, his sister, Madeline, and other children, was brought to Pettis county in February, 1913, by one J. W. Swan, a minister representing, as agent, the Children's Aid Society of New York. The purposes of said society included the finding of homes for homeless children, and in the furtherance of such purpose plaintiff, then about 15 years of age, was placed in the home of defendant and her husband in February, 1913. He continued to reside with them for a period of about years, when he left and went to the home of one George Wagner, Sr., also a farmer residing near Lamonte.

The petition charges in the first count that on the _____ day of July, 1913, defendant, without just cause or provocation, willfully. wrongfully, and maliciously assaulted and beat plaintiff by striking and beating him on his bare body with a strap, to his great injury. The second count charges that on or about the 15th day of March, 1914, defendant, without just cause or provocation, willfully, wrongfully, maliciously, and unlawfully assaulted, beat, and wounded plaintiff by striking and beating him on his bare body with a large and heavy piece of wood. The third count charges that on or about the ____ day of May, 1915, without just cause or provocation, defendant willfully, wrongfully, maliciously, and unlawfully, assaulted, beat, wounded, and maimed plaintiff by striking and beating him over the head and over his body with a large and heavy strap equipped with a heavy iron buckle and snap; that defendant struck plaintiff on the head with said strap and buckle, and that the buckle of said strap struck plaintiff in the left eye, thereby permanently injuring and destroying said eye, and causing the permanent loss of the sight of said eye. The fourth count charges that on or about the ____ day of July, 1915, without just cause or provocation, defendant willfully, wrongfully, maliciously, and unlawfully assaulted, beat, maimed, and wounded plaintiff by beating him over the head with a stove lifter, and by assaulting, beating, and hitting him over the head and body with a stick of wood, and by striking and beating plaintiff on the head and on his left ear, knocking him down and permanently maiming and injuring plaintiff's left ear, and permanently injuring the hearing thereof. Damages both actual and punitive are prayed in each count.

The answer is a general denial of the charges in each of the four counts; and, as further answer, it is alleged that plaintiff was placed in her home by the Children's Aid Society of the state of New York, under a contract and agreement under the terms of which plaintiff became a member of the family of defendant, to be provided for and treated as a member thereof; that during all the time plaintiff was a member of her 1 family she performed her duties and exercised her authority as parent of plaintiff, and treated him at all times with kindness and affection, "and at no time during said times administered to plaintiff any punishment which was unreasonable or beyond what was necessary and proper for a parent to use and administer in efforts to discipline a child."

The reply was a general denial.

The cause was tried to a jury, and the verdict was in plaintiff's favor, as follows: On the first and second counts, $500 each, or $375 actual and $125 punitive damages; and, on counts 3 and 4, each $1,875 actual and $625 punitive damages. Judgment therefor was accordingly entered. A motion for new trial filed in due time was overruled, and defendant brought the case here by appeal.

At the threshold of this case we are confronted with a motion to affirm the judgment for the following reasons: (1) That the abstract of the record does not show that any bill of exceptions was filed as required by rule 26 of this court (169 S. W. xv); (2) that the brief filed by defendant does not contain in numerical order the points or legal proofs relied on, as required by rule 15 of this court (169 S. W. xiii); (3) that the statement filed by defendant does not consist of a clear and concise statement of the case without argument or reference to issues of law, as required by rule 16 of this court (169 S. W. xiv); (4) that the statement is not followed by any brief containing a statement of points upon which defendant relies for a reversal of the judgment; and (5) that the whole instrument denominated "Statement and Brief" purports to be a statement only, and is an instrument in which are intermingled statements of alleged facts, statements of the contentions of the parties, and a collection of what are denominated rulings on introduction of testimony.

As to point 1, it is only necessary to say the record discloses that on the first day of the October term of the court, to wit, on October 3, 1921, and within the time allowed by the court, defendant presented her bill of exceptions, and the same, being found correct was allowed and signed by the court; and, by its order duly entered of record, ordered and directed that said bill of exceptions be filed and made a part of the accord in said cause. Immediately after this showing, in the abstract of the record proper, appears a statement that the said bill of exceptions is marked filed by the clerk. We think this is a sufficient showing that the bill of exceptions was filed to enable us to review matters of exception on appeal.

As to points 2, 3, 4, and 5, of said motion, an examination of the brief and statement complained of discloses that the points are marshaled in such manner as to enable this court to grasp satisfactorily the questions presented and defendant's position relative thereto. We hold, therefore, that the statement and brief presents a substantial compliance with the rules of this court. The motion to affirm the judgment because of insufficiency of the abstract is overruled.

The first charge of error made by defendant is that the admission in evidence of the testimony of plaintiff to the effect that the husband of defendant stood by and saw defendant whip plaintiff, and that the husband also assaulted plaintiff, was improper. In support of this charge defendant urges that inasmuch as her husband was not charged with having beaten plaintiff, and was not a party defendant, said testimony was highly prejudicial to her. The record shows that this testimony was received without objection of counsel until the following questions were asked and answered:

"Q. What was her husband doing? A. He was standing there watching me, and I had to take the beating. And he knocked me down and stomped me.

"Judge Kennedy (counsel for defendant): We object to anything Daniel Sullivan did.

"Mr. O'Bannon: They were both present, and she is absolutely liable.

"Judge Kennedy: No; we tried that out in the original petition.

"Mr. O'Bannon: We didn't do anything of the kind. We had it in the original petition that you could sue him for both wrongs, but under this petition the act of one of them is the act of both of them.

"The Court: Well, it is in, and the jury has heard it.

"To which action and ruling of the court the defendant by her attorneys, then and there duly excepted at the time, and still excepts."

Defendant failed to move to strike out, and, as the testimony complained of was given without objection, up to the point indicated in the above colloquy, she is not now in position to complain We rule against defendant on this point.

Defendant also charges error in that the court refused to permit defendant, on cross-examination, to question plaintiff relative to an attempt of plaintiff to "get into Dennis Connor's cellar." Also the same charge of error is made relative to the refusel of the court to permit defendant to cross-question plaintiff as to an alleged attempt made by him to break into the cellar of "Grandma" Sullivan. Defendant contends that such evidence was proper because the boy was incorrigible, and also that such evidence went to the credibility of plaintiff.

We cannot agree with this contention: First, because the two things sought to be proved would not show incorrigibility; next, the evidence was immaterial.:t was not offered to justify any whipping defendant may have given him, since defendant denies ever having punished him at all. Moreover, it is not properly a matter of impeachment. A witness may not properly be impeached by proof of specific acts, under the well-known rules of evidence.

Further, error is charged in that the court refused to admit evidence as to trouble between defendant and others over the appointment of a postmaster at Lamonte, Mo. Defendant attempts to support this contention by arguing that the evidence might have developed that a conspiracy existed between plaintiff and the people who were instrumental in having the suit instituted.

Evidence that ill feeling or unfriendliness had arisen between defendant and any witness who testified against her would be admissible to show bias, and as bearing upon the credibility of the testimony. But this would not entitle defendant to introduce evidence as to the facts or details involved in the trouble or the unfriendliness. Besides, there is no offer to show what the witness whose testimony was excluded would have...