*1 money checks pay out the called and others that it would given yet defendant himself presented, had been out but not upon pay them, bank, promise, would and the sole such reliance money for on such be paid checks, sued defendant will out though original bank as undertaking, liable to 'the even defendant’s, promise was oral. following the case bar, As we view conclusion is inevitable: district was in need of complete The school funds to the con- building equip of a school and to struction Thereupon same.( personal who had a direct defendants, individual interest signed in which writing matter, stated, it is effect, anyone money, would loan sum to exceed $4,000, they would execute a board, the school note or Re- notes therefor. lying upon writing, plaintiff money. furnished the toUp this acts the defendants were praiseworthy time the and all was They good were then promise well. called make their money furnished by plaintiff, execute notes refused. only was lawful agreement default is The that of defendants. agreement they performed their Had executed the notes, would obligations? 'anyone such notes were valid By failing contend promise keep and execute the notes, their should not be would position than be in if the better contract had been deny part. performed recovery on their To permit would be to advantage take their own defendants default. hold above stated we For trial court erred in sustain- reasons
ing petition. to the the demurrer is accordingly the cause remanded. Bland, J., concurs; reversed F. Trimble, J., absent. Mary Next Christman, Friend, Respondent, Edward v.
James Appellant. (2d) 672. Hickman, Appeals. March Court 1931. *2 S. respondent. Malcom Ga/rrard for N.
Charles Sadler appellant. is an CAMPBELL, damages C. This action recover for an alleged battery. $500 Plaintiff recovered assault and appeals. and damage, actual defendant alleged plaintiff’s petition in pupil that was a in he
Yeager public Missouri; School, a City, school Kansas that de- a school; fendant was teacher said that on 19th May, of beat, bruise, whip, defendant did and illtreat wound years who was then a age, nine with broom stick or deliberately, unreasonable, and large cruel, stick in an ex- and manner legs parts cessive strike and other whip person, and did him his strike therewith between twelve and thirty times, in consequence right and of which his hand was bruised, dislocated, pelvic hips his thumb his bones and bruised displaced,, making hip and one other, lower than and the bones of his left leg bruised, cracked; fractured, splintered broken, permanent deformity injury resulted; that and that such acts of willful, defendant malicious, wrongful were and unlawful. general denial, specific allega-
Defendant’s answer is a and and an tion a teacher that was schools of Kansas City place at alleged time ad- plaintiff by good “was made faith for the ministered necessary discipline purpose correcting him and was to maintain ’’ school; moderate, injury. was and caused no said reasonable and mother, brother; pupil in and a he was a two sisters Plaintiff testified that with his father in, he lived o CO co- a teacher defendant was alleged; place the time school whipped May 19, she forenoon school;
in that question; give him correct answer was unable to because he stick, thirty broom times twenty-five that she him struck endeavoring screaming crying during which time he was put he beating him away her; to break she while hand hit his she protect his hand on his and that back to himself other ‘place and stick, with the out of broom knocked thumb away; injured'the hand; wise stiff leg became that his left his that he and went day left the school room noon home, being pupil; helped part a fellow way room on this occasion of the school going out you out;" any complaint, better look “If there him: thereupon his who mother was examined went home, *3 car; the building in that arrival at a him to the school took defendant, who showed building saw Miss called he Richards school “that she think beat and didn’t she marks, her the did, as she and no many beat me hard as times and didn’t me that me;” he whipping gave that then went a she boy deserved such and then to the a few minutes was taken home, to his remained library Mr. public at where he saw Cam- of Education the Board mack; a office treatment that he‘then to doctor’s and received went days thumb; his took injury the that two later mother the him; him to Dr: him but would not examine who undressed Ford by he was Dr. Lakeside that taken Ford to his mother .and Hospital X-ray by. was up steps; and them' carried that covering put plaster taken and body cast his paris cast, he was a hips from a past little a the ankle little above leg; left after weeks; he in the remained cast for several the cast was when limp; removed a he walked with thereafter he necessary went to following; September school was it pillow. aon him to- sit n tried three Excerpts case has been times. appears the plaintiff at one or other evidence of former trials it is shown therein his introduced and evidence in the was evidence at one of the former case and his trials instant was not entirely consistent. ' pupils Yeager in the A number of School present who were alleged whipping the time of the testified substance that de- whip plaintiff with a fendant did broom stick pointer but none any exception, of them, with one made statement relative to the by used the defendant. them force One of said: “well, it seemed very like she didn’t strike him so but hard she struck him fast.” Expert was and other evidence plaintiff offered corroborating severity injury. extent and of his witnesses, including teachers In behalf number of defendant’s a whipping, present alleged pupils in the and school time plaintiff to a tending testified state facts to show that injured; part healthy gym- he all normal, boy, was a took climbed, work jumped nasium in all and games sports, and and run; plaintiff days that in a alleged injury few and while after the claims he in a plaster paris cast, running and playing, he was jumping; using at other claims times when crutches he was carrying walking with- them under his arm out a limp; that on if defend- boy one a asked him occasion friend really broke turned leg, sneer, his with a to which he replied away began limping; it walked was not a broom whipping plaintiff used in a stick the defendant but much smaller pointer; that had been used as stick did hands; whipping touch her was not severe special among nor did it pupils. attract attention Defendant, whip as a said that witness, she pointer using striking eight him some ten times place down;” gave where “sits that she considered she him spanking: that she not made the statements attributed mother; shortly whipping’ his after the day, walking and on the same saw the about she ‘building, apparently unhurt; teaching school been that she had years and was schools of Kansas for several teaching there at the time the trial. It is by appellant peremp- insisted refusing the court erred
tory requested by plaintiff’s instruction case, of her the close and erred in by refusing the like instruction tendered close of all the evidence. The demurrers to properly the rejected, evidence'were since there ample evidence, by if support the the believed to case jury, [Haycraft App. 345, nleaded. Grigsby, 360; v. 88 Mo. v. State 655,
Koonse,
App.
123
139;
Mo.
Dix Martin, 171 Mo.
v.
266,
App.
The of relating error testimony the admisison of part the of are denied. The objec- record reveals that in tions some instances were questions after the not until were made
832 objection an to which evidence in instances
answer'ed; the other admitted. properly was made was' 2 4. Instruc 1,
Complaint plaintiff’s instructions is'made of have schools jury although 1 teachers told the tion the right reasonable under the law to inflict unreasonable inflict right has no pupils,nevertheless, teacher jury found if the punishment upon pupils, or excessive punish that the and excessive defendant did inflict unreasonable ment favor issues plaintiff, then will find instruction, case by terms, the whole plaintiff. This its covers jury if de found plaintiff’s and' behalf authorizes verdict The punishment. fendant did inflict unreasonable or excessive only by is defendants against criticism this instruction leveled verdict; guide jury arriving it at a furnishes no defined terms unreasonable are not and excessive cited not instruction has confusing misleading. is Defendant aiiy authority failure to define support hér contentions. reversible is not error. -and “excessive” words “unreasonable’’ W. App. 535, 199 Circle, 204 S. Home Mo. Protected [Holmes v. App. 475, Mo. 202; Company, 206 v. Miller Firemen’s Insurance be understood W. do want to S. "While we 1029.] made the attack it not vulnerable to approving the is instruction, upon it. jury
Instruction 'whether determining tells the punished they may manner, in an unreasonable and excessive into take the instrument age consideration size by whipping plaintiff, used find that she did by whip him, argued is and the nature of the It offense. offense,” closing instruction, words “the nature of the jury Ob- advised the viously had some offense. committed jury the court told an would understand that them been' which had committed, offense had nature of entirely clear language consider. it From the used an whether the term act of “offense” refers to an court province act the defendant. not within the com- determine, law, as a matter of whether offense been proper nor was it defendant, mitted either jury from which the language for the court to in an instruction use *5 had saying infer them that offense would that the court been committed. jury 4 if found
Instruction told the issues favor plaintiff they damages, any, his actual if would assess at such the evidence to be fair from they found as reasonable sum plaintiff an^, if for 'sustained compensation injuries, as a whipped, if they struck or -being found he result direct they may take into and that whipped, any consideration struck
833 plaintiff physical from the suffered pain which believe evidence injuries. from said
By jury instruction the court told the found punishment upon inflicted unreasonable and excessive plaintiff, plaintiff, then the be in favor of issues should found with- out requiring jury any injury. to find that suffered
Many gave tending witnesses evidence show any injury whipping. receive whatsoever as the result of the Tt is clear the by requesting instruction court asked the jury upon theory to submit the case to the sought punishment to inflict and that only recovery theory inflicted was punishment bound, By plaintiff is theory unreasonable or excessive. injuries and is therefor not he sustained entitled recover unless punish- on account of the infliction or excessive of unreasonable 1, Upon ment. instruction submitted in said theory, as punishment it became proper up point was lawful when precluded unreasonable or excessive. Plaintiff therefore a recovery injury pain for before the suffered inflicted or became unreasonable excessive. Instruction however, jury compensate the authorized the by him, even injury pain sustained or suffered thougli was, merely spanked. contends, particulars pointed
The instructions are erroneous out and, reason, judgment is reversed and the cause re- Boyer, G., manded. The Commissioner so recommends. concurs. PER foregoing opinion by C., CURIAM:—The is here- Campbell, by adopted as opinion of the court. The is reversed concur, Trimble, and the All except J., cause remanded. P. absent. Kelly v. G. J. Company, Respondent, al., et Store Jones Appellants. (2d) 681. Appeals. Court of March 1931.