127 Mo. App. 392 | Mo. Ct. App. | 1907
This is a suit for damages, both compensatory and exemplary, resulting by reason of an assault and battery committed upon the plaintiff by the defendant. The evidence on the part of plaintiff tended to prove that plaintiff, who had been doing some trading at defendant’s store at Hendrickson, was sitting upon a box near the center of the storeroom discussing with the defendant the matter of a public road which passed through defendant’s lands, and plaintiff remarked: “Magill, if I had have been you, I would' have been afraid to have built gates across that road like you did; I would have been afraid some of my neighbors would have done me some harm.” To which remark defendant replied: “You have done a considerable worse. Some of the neighbors say you killed some of their stock.” Whereupon plaintiff replied: “Anybody that says I killed any of my neighbors’ stock is a damned liar.” Defendant replied: “I did not sa.y this; I said some of the
Plaintiff Avas shoAvn to be a poor man, possessed of property valued at about $1,000 and defendant was shown to be a well to do farmer and country merchant, owning a large acreage of lands, numerous horses and cattle, some bank-stock, notes, money, etc., valued at from $40,000 to $70,000.
1. The plaintiff’s petition enters somewhat into detail in alleging the several injuries inflicted. In reference to the several kicks administered by defendant to plaintiff while plaintiff was prostrate upon the floor, it charged the defendant with “stamping” plaintiff. After the evidence was in, the court, over defendant’s objection and exception, permitted plaintiff to amend the petition in conformity to the proof by striking out the word “stamping” and inserting in lieu thereof the word “kicking.” The first point made on this appeal is error predicated upon this action of the trial court in permitting the amendment. It is strange indeed that plaintiff’s counsel should have dignified a matter so trivial with an amendment. It was perfectly proper, however, if he so desired and the court committed no error in allowing it. The code is extremely liberal in permitting amendments at any time before final judgment, “when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.” [R. S. 1899, sec. 657.] This amendment certainly did not substantially affect plaintiff’s claim or the defendant’s defense of the action and there was no
2. The petition charges, “the defendant wilfully, maliciously, wrongfully and unlawfully assaulted >and beat the plaintiff,” etc., etc., and. then enters into specifications as to the acts of defendant and their results upon the plaintiff, and avers the plaintiff is damaged by the wrongful acts complained of in the sum of $2,000 and concludes as follows: “Wherefore plaintiff prays judgment in the sum of $2,000 actual damages and the sum of $1,000 exemplary damages, and for his costs.” Our statute, section 594, Revised Statutes 1899, provides that in actions where exemplary or punitive damages are recoverable, “the petition shall state separately the amount of such damages sought to he recovered.” In view of this statute, the argument is advanced that the petition is insufficient to support the recovery of punitive damages as it does not proceed by separate specification, after the case of actual damages is stated and recovery prayed therefor, to re-state such facts of aggravation as will authorize a recovery for exemplary damages and conclude by asking $1,000 exemplary damages because of the facts last stated. The point is not well taken. The petition is certainly sufficient under the statute and all of the authorities with which we are familiar. Now, as above quoted, the petition in plain terms, charges the defendant’s acts were committed with malice and that they were unlawfully done as well, either one of which allegations is sufficient to authorize proof tending to sustain a recovery of exemplary damages, as it is well settled that matters of aggravation do not constitute a part of the cause of action, and may be proved even though malice is not charged, if they are charged to have-been unlawfully done. [Pierce v. Carpenter, 65 Mo. App. 191; Howard v. Lillard, 17 Mo. App. 228; Dailey
3. In this case, where the evidence tended to prove malice, it was entirely proper to receive evidence as to the financial standing and ability of the defendant. [See Buckley v. Knapp, 48 Mo. 152; Dailey v. Houston, 58 Mo. 361.] And it was likewise proper to receive evidence of the plaintiff’s financial condition. [See Beck v. Dowell, 111 Mo. 506, 20 S. W. 209.]
4. It is next argued that there was no evidence to warrant the recovery of exemplary damages and for that reason the court should not have authorized a recovery therefor in its instructions. In matters of tort, where the evidence shows circumstances of oppression or malice, it is certain that exemplary damages are properly awarded under the law of this state. [Buckley v. Knapp, 48 Mo. 152; Dailey v. Houston, 58 Mo. 361; Goetz v. Ambs, 27 Mo. 28; Howard v. Lillard, 17 Mo. App. 228.] It seems there is abundant evidence in this record tending-to show malice. This is especially true on the proof as given by the plaintiff and his witnesses. And it is likewise true on the evidence of the defendant, for he was in no sense justified in maltreating the plaintiff as he did, even though the plaintiff, lowered his hand to his pocket, as testified to by defendant and his son, for it appears he made no move to produce a weapon there
5. The defendant requested and the court refused the following instruction: “The court instructs the jury that, under the evidence in this case, you cannot allow plaintiff any punitive or exemplary damages, if you allow him any damage, unless you believe from the evidence that defendant broke plaintiff’s jaw-bone by kicking instead of striking him with his fists.” The instruction proceeds upon the theory that it is the quantum of force employed and not the state of mind with which that force is exerted which determines whether or not the case is one for exemplary damages. This is error. The instruction entirely overlooks the state of mind of defendant when making the assault. Now the right to recover compensatory damages in this case depended not upon the quantum of force employed by defendant, nor was it material whether the plaintiff received his broken jaw by blows from defendant’s fist or from kicks with his booted foot, but the right to recover such damages depended rather upon the fact whether such blows, either from the fist or foot, were administered by defendant while in a malicious state of mind, and if there was malice on the part of defendant, then the case was
The court gaye á yerbal direction to tbe jury to tbe effect that if they reached a unanimous verdict, one of their number, the foreman, should sign it as such; and that if they could not agree upon a verdict, the constitution of Missouri authorized nine of their number to return a verdict, if as many as nine reached an agreement thereon, in which event the verdict should be signed by all of the members of the jury who agreed to it. Our statute, section 748, Revised Statutes 1899, provides for the court instructing the jury in writing, and that either party may move the court in writing for an instruction “on any point of law arising iu the cause,” and that the court may, of its own motion “give like instructions.” Upon this statute the argument is predicated to the effect that the court erred in giving the verbal direction to the jury above mentioned, with respect to the authority of nine of the jurors, to make a verdict, etc. We are not impressed with the argument. The statute, as above quoted, contemplates written instructions upon “points of law” arising on the issues of the case, and is not to be interpreted as forbidding the court to direct the jury ore tenus about their ordinary duties as jurors or as a jury, such as was done in this case. The statute supra certainly would not be construed to. require the court to instruct the jury in uniting as to the duty of not discussing the case among themselves until the trial had been completed, nor discuss it with any one, nor permit any person to discuss it outside of the courtroom in their presence. This is unimportant, however. The defendant is not in a position to complain on the record before us. The verdict returned was by the unanimous voice of the jury and under such circumstances, even if there were technical error in the verbal direction, no constitutional right of defendant, has been infringed thereby, and such error
There are some other criticisms of instructions in the briefs. Learned counsel have not 'deemed them of sufficient importance, however, to justify the setting out of the instructions in the printed abstract or brief. The above instruction, copied and commented upon in the opinion, is the only one set out by counsel in the abstract or brief. Under such circumstances, the court is justified in declining to search through the record for instructions to compare with the arguments pro and con in the briefs directed thereto, and therefore they will not be further noticed. [Deitring v. St. Louis Transit Company, 109 Mo. App. 524-557, 85 S. W. 140.]
Upon a careful review of the entire record, it seems the judgment was for the right party and should be affirmed. It is so ordered.