284 S.W. 828 | Mo. Ct. App. | 1926
Plaintiff's petition, which is directed against both defendants jointly, is conventional. The separate answer of defendant, Winfield S. Hayden, is a general denial, and as an additional answer denies that the assault was without provocation and alleges that the plaintiff disturbed the peace of defendants and that the plaintiff refused to leave the premises of the defendants when requested to do so by the defendant, Winfield S. Hayden, and that said defendant thereupon undertook to eject plaintiff from his premises and in so doing used no more force than was necessary, and that whatever injuries, if any, were inflicted upon plaintiff, were done by defendant in the necessary defense and protection of his home.
The separate answer of defendant, Ella M. Hayden, is a general denial, and further alleges that plaintiff made an assault upon her husband and that while her husband was defending himself and at a time when plaintiff and her said husband had, "become separated from each other, she ran between them in order to keep them separated, and denies that she at any time either beat, struck or assaulted the plaintiff or inflicted any injury upon him in any manner."
In light of the ground assigned by the court as a reason for granting the defendant, Ella M. Hayden, a new trial, we of necessity set forth the material facts as they appear in the record before us.
On Sunday, May 6, 1923, the plaintiff, Sidney T. Watters, a young man aged twenty-five years, called at the home of the defendants, Winfield S. Hayden and wife, at which time and place there was a conversation between appellant Watters and defendant Winfield S. Hayden, as to an insurance policy, which had been mailed some months before to Watters by defendant, Hayden, and the payment of the premium had never been made, Watters claiming he had not ordered the insurance and *677 defendant Hayden claiming that Watters had kept the insurance and therefore owed him the premium. Some words were exchanged and according to the plaintiff's testimony in the case, defendant Hayden, while they were standing on Hayden's front porch, struck plaintiff in the face and about the head, said assault being without provocation. The assault upon plaintiff was begun on the porch and was finished out in the street in front of the house.
Plaintiff's testimony is that he only tried to ward off the assault and keep from being beaten up and was in no sense an aggressor. It is not denied that plaintiff sustained a severe injury, his jaw having been broken on both sides.
At some time during the encounter, and it was after plaintiff and Winfield S. Hayden had gotten to the street in front of Hayden's house, the defendant, Ella M. Hayden was present on the scene and we quote the following from plaintiff's own testimony as to what happened at this juncture.
"As we separated again, I was conscious of someone else on the opposite side, someone gave me a push from the left side; I knew it was a woman . . . this woman gave me a violent push from the left side, that was the first I saw. This woman was Mrs. Hayden, the defendant here. While Hayden was assaulting me from one side she pushed me from the other; when he was in front she pushed me from the back and she slapped at me. I mean Mrs. Ella M. Hayden, the wife of the defendant, Winfield S. Hayden. . . . After a brief period of time they ceased their attack and my sight cleared up just a bit."
And on cross-examination, plaintiff said: "After she came out, I know she slapped me and pushed me about and assisted the Judge" (meaning defendant, Winfield S. Hayden, who is a Justice of the Peace in Palmyra, Mo.) Continuing, plaintiff testified: "She slapped me with her hand or fist, I am thoroughly conscious of that. I think she attempted to hit me with her fist several *678 times, but I know she slapped me with her open hand. I don't know how hard she hit me. . . . Mrs. Hayden pushed me in the back and I think I said that she slapped me. . . ."
Emily Guard, aged eleven years, testified that she was sitting in a swing on the front lawn of a house almost opposite that of the defendant, Hayden; that she saw plaintiff drive up to the house and saw Winfield S. Hayden come out onto the porch and talk to plaintiff; that whilst the plaintiff was standing with his hands at his side, she saw Hayden draw back his closed hand in a manner indicating he intended to strike plaintiff; that she closed her eyes not wanting to see a fight; that when she looked again she saw plaintiff and Hayden fighting out on the street near a cement box; that she then saw Mrs. Hayden in the street, and that she "had her hand in his (plaintiff's) back pushing him and telling him to get into the car. . . . I did not see her strike him."
A neighbor, J.A. Clawson, who lived across the street from the defendants' home testified that while he did not see the beginning of the trouble, he did see the defendant, Winfield S. Hayden, and plaintiff, "as they came off the porch; they worked their way to the street, having hold of each other and struggling around. I saw Mrs. Hayden, she came out and pushed Mr. Watters around and told him to get in his car and get away. I think she kinda helped them get separated; if I remember distinctly she was pushing on Watters. I could not say that she did any pushing on her husband. After they separated Mr. Watters came over to the porch of my place with his car. He was bleeding at the mouth and I noticed his jaw was broken."
On cross-examination this witness testified that he saw defendant, Mrs. Hayden, come off the porch; "that she came out and pushed Watters around and told him to get in his car and get away. . . . She pushed him around and she had her hands on him several times." *679
Mrs. Mary Guard, a witness for plaintiff, testified that she lived in one of the defendants' houses close to the Hayden residence where they then lived; that she first noticed plaintiff and Winfield S. Hayden when they were down at the cement box in the street, "when I first saw Mrs. Hayden she was standing on the sidewalk; she stood there quite a little while, then she came down where the men were, she put her hands on Mr. Watters and was talking to him."
On cross-examination she testified that when she first saw the men by the mortar box, defendant Hayden was striking at the plaintiff and plaintiff had "his hands up as though warding off a blow."
As to Mrs. Hayden, she said that "from my observation it would be my judgment that she was trying to get Watters to get into the car and get away. She was striking at him by her gestures, that was what she meant. I would say she was striking him with her open hands. I could not hear what she was saying."
The defendant, Winfield S. Hayden, testified that when plaintiff and he stood on the front porch, plaintiff addressed him in an "angry, threatening manner. . . . I expected trouble. I was angry and his manner was threatening. I says, `look here young fellow, if you came down here for trouble, get yourself off the porch — get away,' and I put my hand out (indicating). I says, `get out and get away.' I simply put my hands out toward the front of the porch and motioned in that direction, telling him to get away, three times I asked him off — I had raised my right hand to about the top of my shoulder. . . . It was my intention to help him along a little bit and put my left hand about the top of his shoulder; the moment I did that he grabbed me with both hands. He grabbed my arm and neck and I struck him, struck at his face. I struck him on the right side. . . . Plaintiff then threw his arm around my neck and pulled me down to a mortar box that was standing in front of the house. When he got to the mortar box he reached *680 for a stick with his left hand and I twisted out and jerked him away. He struck at me three or four times. I stepped this way, he got around here and I hit him once more. I hit him right on the breast and when I hit him on the breast he went back toward the middle of the street. As he came back toward me he reached over this way for a rock lying about six feet from us and as he did that my wife ran in between us. He followed close up to her and struck over her head once at me, then he struck over her shoulder. . . . My wife says, `you get away from here — get in a car and get away.' He says, `I will not do it, I am in the street.' She repeated to get away and with that he walked right on up near my front porch. He had his hand in his left pocket and drew out a little pocket book and took a check out and handed it to me and folded his book up and put it back in his left hip pocket and my wife says, `don't you strike any more, get in the car and get away.'"
The defendant, Mrs. Ella M. Hayden, testified to the same effect as that of her husband and as to her participation on her own part she testified: "I walked very leisurely out to where they were; at no time did I strike Mr. Watters with my fist or with my open hand or with any part of my body. I did not push him with my hands from the back. The judge struck him the second blow in the breast. I had not been close enough to him to hit him. It was when he stooped to pick up a stone, that I got between them . . . During the entire affair, I did not at any time have in either hand a weapon or club, stick, stone or anything that could be used as a weapon to inflict injury to another person and I made no attempt to or effort to hit Mr. Watters."
We view the testimony in the record before us as outlined above in light of the well-established principle of law that all persons who wrongfully contribute in any manner to the commission of a trespass, or, after the same has been committed for their benefit, assent to it, *681 are responsible as principals and each one liable to the extent of the injury done.
And in the early case of McMannus v. Lee et al.,
"Nor is it necessary to prove by direct evidence that a party advised an act or aided in its commission, but such fact, like any other, may be established by circumstantial evidence. [State v. Gooch,
Tested by the application of the above principles, we cannot say as a matter of law that the defendant, Mrs. Ella M. Hayden, did not participate in this assault, but we must rule that plaintiff made out a case for the jury as against both of the defendants.
Counsel for respondent urges that in any event though the jury found that defendant, Mrs. Ella M. Hayden participated in the assault upon plaintiff, it must be conceded that practically all of the damage to plaintiff had already been done him before the time when she could be held to have participated in the affray and therefore she should not be held liable for the damage done to plaintiff prior to the time that she joined in with her husband in the assault. The point sought to be *682
made is without merit for where suit is brought against all of several joint tort-feasors, and recovery is had, the same amount must be awarded against all of the defendants found liable and not a different amount against each. [1 Kindead on Torts (1903) sec. 64, p. 119; Hunter v. Wakefield,
As we have stated above, in our view the entire affray, in legal contemplation, was but one act, one assault, and in our view under the evidence it became a question for the jury whether or not defendant, Mrs. Ella M. Hayden, at any time during the course of the fight acted in concert and together with her husband, Winfield S. Hayden, in an assault upon plaintiff. The jury determined this question in the affirmative and held both defendants liable as joint tort-feasor for an assault upon plaintiff. In this situation we must rule that the action of the trial court in sustaining the defendant, Ella M. Hayden's motion for new trial on the ground that plaintiff had failed to make out a case for the jury as against her, was error.
The only other ground urged here to sustain the action of the trial court in granting the new trial to defendant, Mrs. Ella M. Hayden, is the giving of instructions numbered two and three at the request of plaintiff. What we have ruled above disposes of the point sought to be raised adversely to respondent.
It follows that the action of the trial court in granting defendant, Mrs. Ella M. Hayden, a new trial, should be reversed and the cause remanded with directions to enter up a judgment in favor of plaintiff in conformity with the original verdict of the jury. It is so ordered.
Daues, P.J., and Nipper, J., concur. *683
