Orscheln v. Scott

SMITH, P. J. This is an action which was brought to recover damages for an assault. There was a trial resulting in a judgment for the plaintiff. The defendant appealed. The defendant assigns as a ground for the reversal of the judgment the action of the court in overruling his motion to [538] quash the special panel of jurors summoned by the elisor. It appears from the record that the defendant, under the provisions of section 6089, Revised Statutes, filed a motion for a special venire, which was by the court sustained. It further appears that thereafter the plaintiff filed a motion, verified by his affidavit, charging that the sheriff was biased and prejudiced in favor of the defendant and would not, for that reason, impartially summon impartial and unbiased persons as jurors to serve in the case, and praying for the appointment by the court of one or more impartial persons to act as elisors to summon the special jury ordered. This motion was by the court sustained. The court, over the objections of the defendant, thereupon appointed George W. McClanahan, who was coroner of Cooper county, as elisor to summon said special jury. The writ of mnir&faoias was accordingly directed to the said elisor, who executed the samo. The defendant then filed a motion to quash the special panel of jurors so summoned by said elisor, which motion was by the court overruled; and to which ruling the defendant duly excepted. AtrPití'practíc?f siieluf;1 dlscretion of court. The affidavit of the plaintiff charging that the sheriff was prejudiced was not conclusive on the court. It was not bound to take the charge in the verified motion as true, though, in the exercise of its discretion, it might do so. If it was satisfied that the sheriff was # -it p t. _ prejudiced, and therefore disqualified to act, that was an end of the matter, unless it appeared, as it does not, that there was an abuse by the court of the discretion exercised by it. State v. Leabo, 89 Mo. 247; State v. Hultz, 106 Mo. 41. We do not think the action of the court in adjudging that the sheriff was disqualified from acting is the subject of review by us. [539] T?ítj^J’irceCofe: enso*ju?y?ner: [538] Under the statute, section 8188, Revised Statutes 1889, all the powers and duties of the sheriff, in respect to the service [539] of the venire, devolved on the coroner. Until both the sheriff and coroner were disqualified, the court was without power to nominate and appoint an elisor to serve the writ. As the sheriff was disqualified to act, the coroner was the proper officer, both at' common law and under the statute, to serve the verwre. In executing the special venire the officer exercises the power of selection confided to the sheriff at common law; and the character of the officer performing this duty is important and material, and if such duty is performed by an officer not authorized this is a ground of challenge to the array. State v. Smith, 90 Mo. 37. But it is contended by the plaintiff that though MeClanahan acted as elisor in serving the vmi/re he was the coroner of the county, and therefore the writ was served by the proper officer. But he was a particular officer of the court acting under its special authority as distinct from the coroner, who is a general officer of the law. He was authorized to serve the writ not as coroner but as elisor. His commission from the court conferred no valid authority on him to serve the writ and the mere fact that he was coroner did not impart any validity to his act as elisor. The special panel, not having been selected and summoned by an officer of the law, should, as we think, have been quashed on defendant’s motion. The defendant had the right to a special panel of jurors selected and summoned by the officer upon whom that duty was devolved by law, and that this right was denied him we think is clear. "We can not say that he was not in no way harmed thereby. Ablttery:adfmacomment*.uctlons: The defendant objects that the court erred in giving the plaintiff’s first instruction which, in a separate paragraph thereof, declared to the jury: “Compensatory or actual damages are such as will reasonably compensate the plaintiff for his loss of time, expense of treatment of the injuries sustained by [540] the assault, bodily pain or mental anguish and suffering endured and which resulted from the injuries to plaintiff as well as all other damages which you may believe from the evidence will reasonably result to him from such injuries in the future by reason of the. assault, and in determining the amount of damages the jury should consider the permanency of the injury sustained.” The petition in substance alleged that the defendant with a knife willfully, maliciously andwantonlyassaultedtheplaintiff and cut an eye out. There was a denial of this allegation in the answer, coupled with the defense of son assault demesn There was no admission by the answer of the assault alleged in the petition. Whether the defendant did assault the plaintiff, as alleged in his petition, was the distinct issue in the case. This issue was submitted to the consideration of the jury by the plaintiff’s second and third instructions, as well as by the first given for the defendant. But the plaintiff’s first instruction left nothing for the jury to determine except as to the amount of the actual damage that should be awarded. It assumed that the actionable assault alleged in the petition had been committed and that it only remained for the jury to determine the quantum of compensatory damages that should be allowed. It eliminated from the case the vital and decisive issue therein. It practically-told the jury to wholly disregard the defenses pleaded by defendant, as well as the evidence adduced by him tending to support such defenses. It is always error for an instruction to assume as true a controverted material fact in a case. Wright v. Fonda, 44 Mo. App. loc. cit. 643; Fullerton v. Fordyce, 121 Mo. loc. cit. 13. The defendant further objects that this instruction was a comment on the evidence. It seems to us that it is fairly subject to this criticism. It gave the jury to understand that in the opinion of the court defendant was the assailant and that [541] plaintiff was entitled to recover for his loss of time and expenses of treatment for the injuries “sustained by the assault” and that he was entitled to be allowed for future injuries “by reason of the assault.” The only question left open by it for the jury, was the amount of actual damages and whether punitive damages should be allowed. It assumed as a fact that there was an assault committed by the defendant upon plaintiff, and declared, as a matter of law, that the plaintiff was entitled to the actual damages caused thereby. Nor is the error in this instruction cured by the second and third given for plaintiff. When an instruction is incomplete it may, of course, be aided and supplemented by others in the series, so that when they are all read together they will constitute a full and complete expression of the law applicable to the case. But where it is a misleading and an improper comment on the evidence, as here, the curative rule just referred to does not apply. The plaintiff’s third instruction is not subject to the objection the defendant has lodged against it. It does not assume that an assault was made by defendant on him. It told the jury that if they found the issues for plaintiff, then to allow him such actual damages as was “occasioned by the assault.” This was but telling the jury that if they found the issue in respect to the assault in favor of the plaintiff, then they should allow him such actual damages as was occasioned by the assault. We can not think this instruction faulty in expression. - — —: medical services: instrucuon. It is further objected that the plaintiff’s fifth instruction was erroneous. It told the jury that in considering the amount which plaintiff was entitled to recover for medical services it was not necessary to prove that . . the bill for such services had been paid, but that it was sufficient to authorize a recovery thereof if they believed that plaintiff had incurred an obligation to pay therefor. This instruction, by implication, [542] assumed that plaintiff was entitled to recover, and when considered in connection with the plaintiff’s first, it was well calculated to mislead the jury. It should have told the jury that if they found the issues for ylwmbiff then, in considering the damages, they might allow plaintiff for the amount paid, or which he had obligated himself to pay, for medical services, etc. But aside from this, it was erroneous in not leaving it to the jury to determine whether or not the amount which the plaintiff had obligated himself to pay for such service was reasonable. State ex rel. v. Gage, 52 Mo. App. 464; Holthaus v. Hart, 9 Mo. App. 1; State ex rel. v. Shobe, 23 Mo. App. 474. —: evidence: compensation: instruction. No good reason is seen for the action of the court in rejecting the defendant’s offer of evidence tending to prove a conspiracy between the plaintiff and Wilson to assault him. A formal agreement to commit - . - ...... an assault is not always susceptible oi direct and positive proof. Most generally it must be inferred from such facts and circumstances as the evidence tends to prove. The defendant, it seems to us, had a right to introduce the evidence offered by him to develop, as far as he cofild, to the jury his theory of the conspiracy. If such evidence turned out to be insufficient to entitle him to have a consideration of his defense by the jury on that theory, the court could have so declared by a proper instruction. It results from the foregoing considerations that the judgment must be reversed and the cause remanded. All concur.