Johnston v. Wells

ELLISON, J. This action is for personal injury inflicted on plaintiff by defendant by shooting him in the arm with a pistol on one of the streets of Chillicothe. The verdict was for plaintiff for five hundred [561] dollars, actual and three hundred dollars punitive damages. It appears that bad feeling existed between the parties and there was evidence tending to show that each had made threats against the other. Finally, on the day of the difficulty, while defendant was standing on the sidewalk plaintiff came out of a shop and saw defendant on the walk. Plaintiff looked at the defendant when the latter, with an oath, demanded to know why he was lo oking at him. Plaintiff replied that he had a right to look at him whereupon defendant attempted to draw a pistol from his hip pocket, but before he could do so plaintiff rushed upon him, pushing him to the ground. While plaintiff was trying to take the weapon from him he succeeded in firing, the ball striking plaintiff in the arm. As the verdict was for the plaintiff, and as we have concluded that error was committed in the progress of the trial, we have drawn the foregoing statement mostly from the view presented by the plaintiff. We regard instruction numbered eight, in the order set forth in defendant’s abstract, as erroneous. It directs the jury to allow exemplary damages if the act was done maliciously, etc. Exemplary damages are allowed as a punishment to the defendant, and whether such punishment will be inflicted in any given case is within the discretion of the jury. It is proper to inform the jury of their province to allow such damages if they see fit to do so, but there should not be a direction given them which, fairly interpreted, withdraws such discretion and makes the allowance mandatory. [Carson v. Smith, 133 Mo. 617; Callahan v. Ingram, 122 Mo. 355; Nicholson v. Rogers, 129 Mo. 136.] The instruction was otherwise defective by reason of an inadvertent omission to state what it was defendant did justifying such damages. It seems that there was evidence tending to show defendant’s financial condition and situation in order to [562] enhance the exemplary damages. It also seems that defendant had made a transfer of property to his wife. Instruction nine (in the order printed by defendant) properly informed the jury that they might take defendant’s financial condition into consideration in fixing upon a sum, “and the evidence of a transfer of his property to his wife since the bringing of this suit.” The clause in quotation, connected as it is, might well be thought to mean that defendant could be punished in an action for assault and battery, for the transfer of property to his wife. If it was meant that the jury could consider with his other property that which had been voluntarily conveyed to the wife to avoid financial obligations, it should he written so as to express that meaning. As written it was confusing, at least. We think it was also error to allow evidence of an occasion “quite a while prior to the trouble” in which defendant showed a witness how quickly he could draw a pistol. Nothing was said to connect such act with the difficulty, or to show that one was in contemplation. The criticism and objection to other instructions than those noted herein we regard as not well made in view of the whole evidence. Concerning the question of impropriety of allowance for loss of time, medical attendance, etc., as authorized by instructions, on account of not being pleaded in the petition, we are of the opinion that the allegations were sufficient to justify the instructions, especially as no objection was made to the petition before trial. The judgment is reversed and cause remanded. All concur.