Wells v. Lea

Ellison, J. This is an action for damages for assault and battery. The petition contained two counts, the first charging that the defendant and one Sarah Morris (since intermarried with defendant) assaulted, beat, ••cut, and bruised the plaintiff. The second charging defendant and said Sarah Morris with assaulting, beating, and bruising plaintiff’s wife, whereby she was disabled, and he lost her service for a long space of time. The answer wa,s a general denial, with the exception of admitting plaintiff and Alice M. Wells were husband and wife. The evidence offered on the trial, as preserved and set forth in the bill of exceptions, was as follows : “The plaintiff, to sustain the issues on his part, offered evidence tending to prove the issues on his part; and the defendant offered (evidence) tending to disprove the same. And the defendant, to further sustain the issues and disprove the evidence offered by plaintiff, on his part offered evidence to show that Sarah Morris was his servant in his employ at work for defendant, and that plaintiff and his wife, in his presence, assaulted and beat her ; and that he then, to protect the said Sarah Morris from further abuse, struck plaintiff with his fist, using-no more violence than was necessary to prevent further injury to said Morris. This, the defendant testified to without objection by plaintiff, who thereupon offered evidence tending to disprove defendant’s evidence.” The court instructed the jury that there was no evidence of any assault or battery on plaintiff’s wife and that the jury should, therefore, return a verdict- for the defendant on the second count in the petition. [355] The bill of exceptions is in compliance with the rule of the supreme court, to which this case was appealed, and it will be seen it expressly states that plaintiff “offered evidence tending to prove the issues on his part.” Among “the issues on his part,” was the charge in the second count, that the defendant assaulted, beat and bruised his wife, so that he lost her service. Such being the evidence, the court should not have instructed the jury peremptorily. Counsel for respondent state in their brief that there was not, in fact, any evidence against defendant on the second count; we must, however, accept the record as absolute verity. Christian v. Wight, 19 Mo. App. 165. The judgment is reversed and the cause is remanded. The other judges concur.