Howard v. Lillard

Opinion by Philips, P. J. This is an action for assault and battery. The petition alleges, substantially, that on the 6th day of October, 1879, at the county of Yernon, the defendant unlawfully assaulted the plaintiff with a neck yoke, and unlawfully [230] struck, beat, and bruised Mm, by reason whereof plaintiff was deprived of his time for two months, was compelled to lay out a large sum of money for medical services and medicines, was caused to suffer great pain in body and mind, and was permanently injured in his-limbs and person, to his damage in the sum of $5,000.00. The answer tendered, first, the general issue, and, second, a plea of son assault demesne. There was evidence offered tending to support the respective issues.. The jury, after receiving a large number of instructions presenting every conceivable view of the law of such case, returned a verdict for plaintiff, assessing his damages at the sum of $300. Before beginning the trial of the cause, the parties — • plaintiff and defendant — filed in court a written stipulation, reciting that the judge of the court had been of counsel in the case, and agreeing that J. C. Murray, a member of that bar, should try the cause as special judge. Murray took the oath as such special judge, and sat as judge in trial of the case. Defendant has brought the case here on appeal. 1. The first ground of error-assigned by appellant is,, that the special judge had no jurisdiction to try the case, notwithstanding he was selected mutually by the parties. It is claimed that none but the judge of some-other circuit could try the case where the judge of the court of the venue is disqualified. We do not think this question open to controversy. The statute (Revised Statutes, sections 1106 and 3730) expressly authorizes the parties, under circumstances like this, to agree upon some member of the bar, as was done in this case. This practice has been observed in the circuit courts, and has been recognized and sanctioned by the Supreme Court. — Barnes v. McMullin, 78 Mo. 260; Carter v. Prior, ib. 222; Grant v. Holmes, 75 Mo. 109. 2. The only other ground of error urged by appellant is the giving of the following instruction by the court; “If the jury believe from the evidence that the [231] defendant willfully, wantonly, and maliciously assaulted the plaintiff with a club or weapon sufficient to produce great bodily injury and suffering, and did wound and injure plaintiff so' as to cause the plaintiff great bodily suffering, they may in addition to the actual damages which they may find from the evidence plaintiff has sustained, give the plaintiff exemplary or punitive damages to compensate the plaintiff for any mental or bodily suffering or anguish of mind he may have endured.” The criticism made upon this instruction is, that it is not based on any issue tendered in the petition; that to entitle the plaintiff to recover exemplary damages the petition must charge that the assault was maliciously committed. The petition charges that' the act was unlawfully done, and describes the instrument, or weapon, used in perpetrating the injuries, It further sets out the nature and extent of plaintiff’s injuries, showing that they wore grievous and permanent. We have not been referred by counsel to any authority sustaining their position. The old common law form of a declaration of assault and battery was thus: “In a plea of trespass for that the said defendant on the-day of-at —■-, in and upon the plaintiff, with force and arms, made an assault, and him, the said plaintiff, then and there did beat, wound and ill treat” (adding any special matter of aggravation) “and other wrongs, to the plaintiff, then and there did, &c.” Under such a declaration it was a matter of evidence, showing the character of the assault, its aggravating-nature, whether the jury might award exemplary damages. This was permitted, by an instruction similar to the one in question, and under a like petition, in the case of Daily v. Houston (58 Mo. 361), and the authorities fully sustain the action of the court. — Goetz v. Ambes, 27 Mo. 28; O'Leary v. Rowan, 31 Mo. 117; 2 Greenleaf on Evidence, par. 89; Sutherland on Damages, pp. 720-724. Furthermore, if it were conceded that the instruction [232] complained of was improper as a declaration of law, it would not, in view of the record, constitute reversible error. For it is manifest from tne amount of damages awarded the plaintiff that the jury did not allow any smart-money. Considering the evidence touching the excessive battery, and the extent of plaintiff’s injuries, it is quite manifest that the jury limited their award to mere compensation, and they made a most meagre estimate therefor. It follows that the judgment of the circuit court should be affirmed. All concur.