Wingate v. Bunton

Decision Date01 May 1916
Docket NumberNo. 11733.,11733.
Citation193 Mo. App. 470,186 S.W. 32
PartiesWINGATE v. BUNTON.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Clay County; Frank P. Divelbiss, Judge.

Action by William T. Wingate against E. A. Bunton. Judgment for plaintiff, and defendant appeals. Affirmed.

Hewitt & Hewitt, of Maysville, W. H. Haynes, of St. Joseph, and Martin E. Lawson and Ralph Hughes, both of Liberty, for appellant. Charles F. Strop and Graham & Silverman, all of St. Joseph, and Craven & Moore, of Excelsior Springs, for respondent.

JOHNSON, J.

This is an action for actual and punitive damages for a malicious assault plaintiff alleges was committed upon him by defendant May 27, 1913. The answer is a general denial and a plea of son assault desmesne. Verdict was returned for plaintiff for $500 actual and $1,000 punitive damages, and after his motions for a new trial and in arrest of judgment were overruled, defendant appealed.

The parties lived at Maysville, were interested together in a number of business enterprises as partners or stockholders, and were men of substantial means; plaintiff's wealth being estimated at more than $50,000. They were partners in the ownership of two race horses, valued at $1,000, and plaintiff had been attending personally to the business of racing the horses, which had proved a losing venture. He claims defendant had refused to bear his share of the losses, and on the day preceding the assault he had purchased defendant's interest, which was one-third, agreeing to pay therefor $333.33. We infer this transaction marked the end of close and amicable business relations which had existed between them. Plaintiff contends that the purchase price of defendant's interest in the horses was to be taken into account in a settlement and adjustment of all their business affairs, to be made on his return from a trip to Smithville, where he intended to take the horses for training. Defendant appears to have understood that the money was to be paid before the removal of the horses from Maysville. Plaintiff had possession of the horses, and the next day took them to the railroad stock pens, and was proceeding to load them in a car for shipment to Smithville, when defendant appeared and a dispute ensued, which culminated in a fistic encounter.

Plaintiff and an assistant were leading the horses through the yards to the gate at the entrance to the loading chute, when defendant placed himself in front of plaintiff and asked if plaintiff had arranged at the bank for payment of the purchase price. Receiving a negative answer, defendant said, "You had better, hadn't you?" Plaintiff answered, "I don't know why; you are owing me anyhow." Defendant said, "You will have to settle with me, or you ain't going to ship these horses," and seized the halter rope by which plaintiff was leading one of them. The two men jerked at the rope, and finally the horse pulled loose from both of them. Defendant recaptured the horse and had a servant lead it to his barn. Then, pushing back his sleeves, defendant approached plaintiff and said, "You will settle with me right here." Plaintiff replied, "I don't think I will," and thereupon defendant began striking at plaintiff with his fist. Two or three blows reached plaintiff's arm and shoulder, causing some pain, but no physical injury of any consequence. Plaintiff used his hands to ward off the blows, and during the encounter struck defendant lightly on the face. Defendant picked up a stone and threatened to kill plaintiff, but did not throw it. Friends intervened at this point, and the parties separated.

One of these friends, a Mr. Duncan, then undertook the office of intermediary, with the result that plaintiff gave his check to Duncan for $333.33, to hold as trustee for defendant until plaintiff returned from Smithville and had a business settlement with defendant. At first plaintiff told Duncan he would give his check to defendant, but the latter refused to accept it, and then plaintiff agreed to give the check to Duncan, on the understanding that it would not be presented at the bank until plaintiff's return. He told Duncan he did not have sufficient funds on deposit to pay the check. Defendant then had the horse brought back to the stockyards and delivered to plaintiff, who shipped both horses to Smithville. The next day Duncan presented the check to the bank, but payment was refused because of insufficient funds. The evidence relating to subsequent events is not material to the present inquiry, and need not be stated.

The facts we have stated are drawn from the evidence most favorable to plaintiff. Defendant testified:

"I went to the yards and asked Mr. Wingate what he was going to do with the mares, and he said he was going to ship them; and I told him the understanding was he was to pay me first, and he said he would pay me when he got ready. He started to lead the mare past, and I grabbed hold of the rein. * * * He jerked me towards him, and we both struck at one another. The mare jerked loose, and ran to the back of the yard or lot. He went and caught her, and came back with her right straight up to the gate. I grabbed hold of the rein again. We jerked the mare back and forth — that is, the rein in one another's hands — and I stooped down and picked up a rock and told him to let go. He let go. I turned the mare over to my man, and told him to take her back to the place; told Mr. Wingate, when he paid me the $333, according to agreement, that he could take the mares and do what he pleased with them. Q. That's all that transpired up to that time? A. Yes, sir. Q. Between you and him. What, if anything, was said about a check, and who said it? When did you first learn about his giving a check? A. At that time, before he left the yard, I demanded a settlement in full of all other business and his retirement from the bank. Then I left. Mr. Brant and I started to the car. We had gone to the car, when Mr. Duncan came over out of the yard to the car, and said that Mr. Wingate would fix the matter. I asked him how. He said that he would put up his check. I said I wouldn't accept his check. Q. Say how much he would put up his check for. A. $333.33. Q. What further occurred? A. Well, he said that — I told Mr. Duncan that if he would get the money, and pay me for the mares Saturday or Monday, that they could go. Well, he said he would do it. I ordered my man to bring the mare back, and I went back to the yard; went back and told Mr. Duncan that whenever he got the money, and would be responsible and turn it over to me, whether Wingate got back or not, and give me the money, Wingate could take the mares and do what he pleased — is what I think I said."

On cross-examination defendant testified that during the encounter he picked up a stone, and to the question, "Did you intend to throw that?" answered, "I don't know; I would have gone as far as possible to protect myself and property."

The argument of counsel for defendant on the demurrer to the evidence, which they insist should have been given, proceeds largely from the version of the encounter appearing in defendant's evidence. In the discussion of the questions raised by the demurrer, we must reject defendant's evidence relating to disputed facts, and accept as true the evidence of plaintiff. That evidence shows that defendant, without justification or reasonable excuse, attacked and struck plaintiff and threatened to kill him, and that plaintiff, at all times, acted on the defensive, and merely tried to ward off the blows aimed at him. Defendant does not say that he acted in defense of his person, but seeks to justify the assault on the ground that he employed no greater force than was required to regain his property, which plaintiff was in the act of removing from the county. The rule stated in State v. Dooley, 121 Mo. loc. cit. 599, 26 S. W. 558, and State v. Forsythe, 89 Mo. 667, 1 S. W. 834, which defendant invokes, does not aid his position. The gist of those decisions is that in the recapture of personal property from a thief or robber the owner may resort to...

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