Jennings v. Appleman

NORTONI, J. This is a suit for damages accrued to plaintiff on account of an assault and battery inflicted upon him by defendant. Plaintiff recovered and defendant prosecutes the appeal. Both plaintiff and defendant are farmers who reside on adjoining estates. Defendant’s hogs trespassed several times upon plaintiff’s growing corn in the. field and finally plaintiff put up the hogs and detained them for the damages done. Defendant became angered at this, passed plaintiff’s house in the morning and threatened to sue him, etc., used vile language when discussing the matter, and said he would go to town and institute legal proceedings to the end of recovering his hogs forthwith. It appears that defendant advised with the justice of the peace and a lawyer and finally -concluded to pay the damages. After returning from — 16 — town in the evening, defendant, in company with his son and two hired hands, went to plaintiff’s home for the purpose of paying the damage and getting the hogs. The damage was agreed upon and defendant paid it, but it appears he became abusive toward plaintiff immediately thereafter. The evidence for plaintiff tends to prove that after the claim for the damage by the hogs was settled and the hogs turned out of the barn, defendant commenced to curse and abuse him, called him vile names and said he would break his head if he ever put up his hogs again, etc. While defendant was so conducting himself, plaintiff ordered him to leave the premises immediately and picked up a club from the ground. Defendant thereupon “squared around” toward plaintiff, put his hand in his pocket and advanced toward plaintiff, who was about fifteen paces away. Plaintiff advanced toward defendant, too, with the club in Ms hand and continued to command Mm to leave the premises. Defendant was in great anger and approached plaintiff, uttering vile oaths. When the parties came near each other, each struck at the other, but defendant took the club from plaintiff, and, it is said, not only felled bim to the ground but beat Mm with great force and violence. Indeed, the proof is that, after defendant had knocked plaintiff down, he continued the battery with such force and violence as to render plaintiff unconscious for as much as ten minutes. As a result of the beating, plaintiff received a broken nose, a large gash on Ms forehead, besides a large knot on Ms face. Plaintiff’s injuries were such as to entirely disable Mm from attending to his duties on the farm from the 15th of September until the following June. For defendant, the evidence tends to prove that, though he thus unmercifully pummeled plaintiff, he did so in self defense. Defendant insists that he was in the act of leaving plaintiff’s premises in a peaceable manner when plaintiff followed and assaulted him, — 17 — with a club. Plaintiff’s son gave evidence to the effect that, while his father was prostrate on the ground, his mother came running from the house, demanding defendant to desist and leave the place, and that defendant applied an ugly and vicious epithet to her. It is argued the judgment should be reversed for receiving this remark of defendant in evidence, as it was clearly introduced for the purpose of inflaming the feelings of the jury. There can be no doubt that the epithet so applied to plaintiff’s wife was incompetent, but the argument avails defendant nothing here, for it appears the court sustained his objection thereto and ordered it stricken from the record. The jury allowed plaintiff a recovery of $500 compensatory damages and $50 as smart money. The instruction on the measure of damages is as follows: “If you find for plaintiff- you will assess his compensatory damages at such sum as will compensate plaintiff for his injuries and physical and mental suffering if any caused by said injuries together with his loss of time if any occasioned by said injuries. “And if you find the injuries were willfully inflicted you may assess a further sum by way of punitive damages and you may assess his punitive damages at such sum as in your judgment will be á warning to defendant not to commit similar acts.” This instruction is complained of in that it authorized a recovery for punitive damages without requiring the jury to find express malice. The word “willful” therein is said to signify no more than that plaintiff’s injuries were intentionally inflicted. The identical argument has been rejected heretofore by the Supreme Court in Goetz v. Ambs, 22 Mo. 170, 171, and McNamara v. St. Louis Transit Co., 182 Mo. 676, 81 S. W. 880. Though it is usually the practice to require the jury to find malice as a predicate for punitive damages, it is said the term “malice” imports, according to its legal significance, no more than that — 18 — the act is willful or intentional. Therefore, when the word “malice” is used to qualify the character of a trespass, it is only employed to the end of distinguishing it from that class of injuries which one person may inflict upon another without the intention to do harm but for which he is responsible because the act is not unavoidable, as in negligent torts. The word “willful,” of course, implies that the act was intentionally done, and it goes without saying that if such a battery as that involved here was willful and intentional, it was malicious as well. Plaintiff proved by one witness that defendant made abusive remarks about him during the day before the battery took place in the evening. These remarks were made while defendant was discussing the matter of plaintiff having taken up his hogs damage feasant and during the time he was seeking advice with respect to recovering possession thereof. The remarks referred to did not constitute threats against plaintiff but were vile and vicious epithets spoken of and concerning him. It is argued that, though threats made recently before an assault may be shown in evidence, such epithets are incompetent against a defendant who subsequently assaults and beats the party of whom the epithets were spoken. We are not so persuaded, for it was competent to prove these epithets to the end of showing the state of mind of defendant and his animus, on the same principle that threatening language used by a defendant shortly before committing a homicide, indicating an intent to take life but not referring expressly to any particular person, may be considered. [See Benedict v. State, 14 Wis. 423; Kelley’s Criminal Law, sec. 248.] The evidence tends to prove that plaintiff was so severely injured by the unnecessary force which defendant employed in beating him after he was prostrate on the ground and unconscious that he was unable to attend to his duties on the farm for nine — 19 — ■ months thereafter, but there is no direct evidence -in the record as to the value of plaintiff’s timó so lost. -The proof is, that he was a farmer with a family of five children, and plaintiff testified that he was required to work all the time to make a living for his family. As an element of damage, -the court submitted to the jury the matter of the loss of time, if any, which plaintiff suffered in consequence of the injuries received. It is argued this was error because there was no direct proof as to the value of plaintiff’s time so lost. It is unnecessary to discuss this matter at length, for the ease of Mabrey v. Gravel Road Co., 92 Mo. App. 596, is directly in point and the subject is fully reviewed therein. In that case, as in this one, plaintiff was a farmer, who had suffered an injury which incapacitated him for some time from attending to his duties as such and there was no proof as to the value of such time. The court. nevertheless sustained an instruction which submitted the matter of loss of time to the jury as here. Among other things, it is said in that case that beyond question plaintiff was entitled to nominal damages for his loss of time and the instruction was therefore proper enough in its general scope as was said in Browning v. Wabash, etc. R. Co., 124 Mo. 55, 27 S. W. 644. In view of this fact, the judgment should not be reversed when there were facts and circumstances in the case, as here, from which the jury of practical men might infer the reasonable value of such time. As the instruction was proper in its general scope, it should, therefore, not be condemned as reversible error, in the circumstances of the particular case; for, if appellant deemed that . plaintiff’s recovery on account of loss of time should have been limited to nominal damages, an instruction to that effect should have been asked by it, and such was not done. [See Mabrey v. Gravel Road Co., 92 Mo. App. 596, 610.] Especially is the doctrine of that case relevant here, when it appears the entire — 20 — recovery as compensatory damages was only $500, which included not only loss of time but medical expenses and cost of medicine, which were shown, besides suffering, pain, etc. We have examined the instructions, those given for and refused to defendant. Though the instructions for plaintiff are somewhat abstract, each and all of them are sound in doctrine, and the jury could not have been misled thereby. When plaintiff’s instructions are considered in connection with those given for defendant, it appears the issues were fully and fairly presented to the jury. The court did not err in modifying defendant’s instruction. The case- was fairly tried and the judgment should be affirmed. It is so ordered. Reynolds, P. J., and Caulfield, J., concur.