172 Mo. App. 602 | Mo. Ct. App. | 1913
This is a suit by plaintiff, respondent here, for an assault and battery made upon him. The suit was instituted in the circuit court of St. Charles county, in 1905, against Henry Ostmann, Sr., appellant here, and his two sons, William Ostmann and Plenry Ostmann, Jr. Thereafter the venue in said cause was transferred from the said circuit court of St. Charles county to the circuit court of Lincoln county, Missouri. A trial was had in the latter court, before the court and a jury, resulting in a verdict in favor of plaintiff against defendants Henry Ostmann, Sr., and William Ostmann, in the sum of $500 actual damages, and $500 punitive damages, a total of $1000, and judgment was rendered accordingly; plaintiff having in the meantime dismissed as to the other defendant, Henry Ostmann, Jr.
Thereupon the said defendants, Henry Ostmann, Sr., and William Ostmann, duly perfected their appeal from that judgment to this court, where the judgment was reversed and the cause remanded to the" circuit court of Lincoln county for a new trial. [See Schafer v. Ostmann, 148 Mo. App. 644, 129 S. W. 63.] The cause again coming on to be heard in the circuit court, the plaintiff, in the midst of the trial, dismissed as to William Ostmann, leaving Henry Ostmann, Sr., as the only remaining defendant. This second trial resulted in a verdict in favor of plaintiff against said defendant Henry Ostmann, Sr., for the sum of $1200 actual damages and $1200 punitive damages, a total of $2400. Judgment was entered accordingly, and the defendant, Henry Ostmann, Sr., appeals.
The evidence shows that the plaintiff was assaulted by Henry Ostmann, Sr., March 8, 1904, on a public
On the day of the assault, plaintiff met Henry Ostmann, Jr., in front of the latter’s house, on a public road leading to St. Charles. The latter was looking down at a neighboring lake for ducks when plaintiff came up. Plaintiff bade him “good evening,” and he in like manner spoke to plaintiff. Plaintiff asked him what he was doing, and he replied that he was looking at the Maries Croché Lake to see if he could see any ducks. While plaintiff and young Ostmann were thus talking in a friendly manner, Henry Ostmann, Sr., drove up in a spring wagon and stopped beside them. The latter was coming from St. Charles and told his son that he had bought some clover seed. The plaintiff then said: “Mr. Ostmann, what did you pay for it?” Thereupon appellant, with an oath, called plaintiff a dirty pup and said: “I don’t want to talk to you.”
Prom this point on, testimony as to how the assáult began differs somewhat from that given by defendant and his two sons. Plaintiff testified that when
About the time the trouble began, William Ostmann came up, and he and Henry Ostmann, Jr., as well as another son of defendant, were looking on. Plaintiff testified that, while defendant was still on top of him and beating him, William Ostmánn kicked him in the face, just beneath his right eye, seriously and painfully wounding and injuring him, and that.while he was trying to get up and get away from defendant, William Ostmann struck him on the head with a club, which rendered him unconscious; that during all of this time, until he became unconscious, defendant, still continued to beat him, and that while he was unconscious, his brother, Leonard Schafer, drove up in a buggy. The testimony of both plaintiff and his brother was that the former was unconscious, and was lifted
Neither defendant nor his sons denied that the •difficulty began substantially as described by plaintiff in his testimony. They admitted that, while defend.ant was seated in his wagon, plaintiff spoke to him very civilly, and that he replied in the manner menfioned above. They testified that plaintiff told appellant that the latter could not stand on the ground and ■call him a dirty pup; that thereupon defendant got out •of his wagon and approached plaintiff, but that the latter then stepped back, and -defendant started to get back into the wagon, but that plaintiff followed him .and undertook to strike him, and that the fight began in this way.
From the record before us, however, it is very apparent that the defendant was the aggressor throughout ; that, upon being- asked a civil question, he replied ■with oaths and epithets, and then got out of his wagon to attack plaintiff. The evidence is undisputed that, .after having thrown plaintiff to the ground, he got on ■top of him and brutally beat him for a long time. It is denied by-appellant and his sons that William Ost:mann kicked plaintiff in the face and struck him on the
One Fordie Ellis who was a witness for plaintiff, passed along the road while defendant was sitting upon plaintiff and beating him, and stopped and looked on for a short time. He testified that one of the Ostmann boys had a club of some kind, though he didn’t see him strike plaintiff with it; that the latter called out, “For God’s sake man, take him off. Don’t let him kill me;” and thereupon one of the Ostmann boys said to the witness, “Move on or else wé will give you some too';” that thereupon the witness left for the purpose of getting some one to come and stop the trouble.
For a reversal of the judgment below, appellant urges that recovery cannot be had against him, for injuries inflicted by his son, William Ostmann, for the reason, as it is claimed, that the evidence fails to show any concert of action between appellant and said William Ostmann, in assaulting plaintiff. There is no merit however in this contention. And as this is really the only question before us, it is unnecessary to set out the pleadings or the instructions. The petition sets up facts, which, if true, would show that there was concert of action between plaintiff and his said son, in their joint unlawful assault upon plaintiff. The jury were properly instructed as to this question; and there was ample evidence to sustain the averments of the petition.
Appellant relies upon State v. Meyers, 174 Mo. 352, 74 S. W. 862. That case however is no authority for the proposition here asserted by appellant. There
In the criminal prosecution for this assault, this court upheld the conviction of the appellant here and his two sons, William and Henry, Jr., holding that all were guilty as principals, and might have been convicted under an information charging all of them as principals in the first degree. [State v. Ostmann, 147 Mo. App. 422, 126 S. W. 961.]
While the mere presence of one at the time an assault is made will not render him guilty of the assault, nevertheless one merely ready to aid, if necessary, or encouraging or actually aiding the principal
There is ample evidence that appellant and his son, William Ostmann, were both engaged in the same unlawful act of assaulting plaintiff, both participating therein and with one common purpose. Appellant sat upon plaintiff and beat him with his fists, while William Ostmann lacked him and struck him with a club. That they acted in concert in inflicting the injuries in question upon plaintiff so plainly appears from this record, that we shall not pursue the subject further.
It is urged that the verdict is excessive, but this mainly for the reason that it is claimed that recovery cannot be had against the appellant for injuries inflicted by his son William Ostmann. However, some effort is made to convince us that the verdict is excessive in any event. This contention may be disposed of very briefly. The testimony, not only of plaintiff, but of physicians and other witnesses, shows that most severe and painful injuries were inflicted upon the plaintiff. In fact the assault was a most dastardly and brutal one. The amount allowed plaintiff by way of compensatory damages is, in our opinion, none too great. Nor do we think the punitive damages assessed against appellant, as a penalty for his wrongdoing, any too heavy. It was shown by the evidence that appellant was worth something over sixty thousand dollars — although he declined to tell how much personal property he owned. It was proper to take into consideration his financial condition in assessing punitive damages against him. And as we have, said before, the evidence shows that appellant without provocation viciously assaulted this young man, who was unable to defend himself, and most brutally beat him, while appellant’s son kicked him and struck him with a club while he was being held down by appellant. There is not the slight
We think the verdict well enough. The judgment is clearly right and should be affirmed: It is so ordered.