189 Mo. App. 150 | Mo. Ct. App. | 1915
The defendant and plaintiff’s husband engaged in a fight at the Parris home which terminated in the defendant calling for “mamma” (his wife) who was near and who pulled the plaintiff’s husband off of the defendant. The defendant as a result of the altercation received the usual black eyes, scratches and bruises. In the preliminary skirmishes the plaintiff appeared and undertook to prevent any trouble and the defendant grabbed her by the throat, as the testimony tends to prove, and knocked her off of the porch backward, as the result of which she claims to have received injuries for which she sued for fifteen hundred actual and two thousand dollars punitive damages. The defendant’s testimony tends to prove that he did not in any manner injure the plaintiff. The Parris’s lived in defendant’s house and he went there to collect rent. A jury trial resulted in a verdict for plaintiff in the sum of five hundred dollars actual damages and the defendant has appealed.
There is no testimony that tends to prove any permanent injuries to the plaintiff as the result of the alleged conduct of the defendant, but in an instruction given in behalf of plaintiff upon the whole case the jury was told that in determining the amount of plaintiff’s damages they should taken into consideration “the extent of the plaintiff’s injuries, if any such are shown by the evidence, including the physical pain and mental anguish if any, suffered by her on account of such injuries both at the time of the assault and such mental anguish and physical pain, if any, as she may be rea<sonably certain to suffer in the future therefrom.” The objectionable feature of this instruction we have italicized. It was error to give it because there was no testimony upon which to base it, but there was such
On behalf of the defendant the jury was instructed that there was no evidence that plaintiff’s injuries, if any, were permanent and that if they found the issues in favor of the plaintiff no sum should be allowed her for permanent injuries. These two instructions are so inconsistent that it is not possible to tell which the jury followed. [Stid v. Missouri Pacific Railroad Co., 236 Mo. 382, 399, 139 S. W. 172.]
The defendant testified in his own behalf and upon cross-examination he was asked if he was not convicted a number of years ago and fined one hundred dollars for assaulting a little girl that stayed at his house. The question was objected to but before the court ruled on the objection the question was repeated. Another objection was interposed after it was repeated and the court overruled it. The question was again repeated and we are convinced that 'the object in doing so was to arouse in the minds of the jury a prejudice against the defendant. The offense to which the inquiry was directed was a charge of common assault, apparently, to which the defendant entered a plea of guilty about thirty years ago. While section 6383, Revised Statutes 1909 authorizes the conviction of a criminal offense to be proved to affect the credibility of a witness, yet there is no reason in the case for not having particularly designated the offense so that there might not have been any misunderstanding in the minds of the jury of the charge to which the defendant entered his plea of guilty; neither should the plaintiff have mentioned the fine imposed, who the party was or that she stayed with the defendant at his house. [State v. Kimmell, 156 Mo. App. 461, 471, 137 S. W. 329 and State v. Spivey, 191 Mo. 87, 111, 90 S. W. 81.] The court should have promptly sustained the objection to the question in the form in which it was propounded. There are two kinds of assault defined
To the end that the defendant may have a fair and impartial trial and on account of errors above discussed the judgment is reversed and the cause remanded.