Sloan v. Speaker , 63 Mo. App. 321 ( 1895 )

Ellison, J.

The result of the trial of this case in the court below was a verdict for plaintiff for $200. The nature of the action is sufficiently expressed in plaintiff’s petition following:

“Plaintiff states that on or about the eighth day of November, 1893, in the county of Daviess and state of Missouri, the defendant did unlawfully assault plaintiff, and did then and there rudely, violently and with great force, push and slam a large gate against plaintiff’s arm and leg, and with said gate did strike, beat, bruise and wound her, the said plaintiff, upon the leg and arm, and did then and there, in a rude, insolent and angry manner, seize hold upon plaintiff with his hands and did violently shake plaintiff and braise and wound her upon the arms; that by reason of said beating, braising and wounding, plaintiff was crippled in her leg and arms and was for several days lame and unable to attend to her business affairs and was caused great bodily and mental suffering and was thereby greatly humiliated and insulted, to her damage in the sum of $5,000, for which she asks judgment.”

The motion for a new trial makes no complaint of the rulings of the court on the evidence offered, but does complain of the action of the court in giving and refusing instructions. It is insisted that the jury should not have been permitted to give to plaintiff anything in the way of exemplary damages, since, as is contended, no malice was alleged or proven in evidence. The objection is not well taken. It is not necessary that the petition should charge malice in express words. It is sufficient if the petition charges, as does the one here, that the assaulting and beating was unlawfully done, in a rude, angry and insolent manner. “When such is the charge made by the pleading, it is enough to authorize evidence showing the nature of the battery and to test by the evidence whether the case is such as to justify punitive damages. Howard v. Lillard, 17 Mo. App. 228; Trauerman v. Lippincott, 39 Mo. App. 478.

Under plaintiff’s instruction the jury must have found that defendant intentionally and wantonly assaulted and beat the plaintiff without legal excuse or justification; and that he knew at the time that his act was wrongful. Under such state of case, he was properly held liable in punitive damages. ' Trauerman v. Lippincott, 39 Mo. App. 478.

The court properly refused defendant’s request to have plaintiff elect which assault and battery she would rely upon. The petition discloses but one contimious trespass, or assault and battery. When defendant struck plaintiff with the gate and then in the same altercation took hold off her and shook and bruised her, these acts may be properly treated as one offense. In a trespass which from its nature is a single trespass, it is not necessary to separate each striking, whether with weapon or hand, into separate causes of action. In such case it is one trespass.

The defendant’s refused instructions were properly refused.' The refusal of the first is disposed of in what we have said as to the petition. The second, in effect, directs the jury not to allow even compensatory damages, unless the wrong was intentionally and willfully done. That, of course, would have been unjust. The third and fourth instructions omit altogether any question whether plaintiff was right in her attempt to open the gate. And besides, if any first assault by plaintiff on defendant, or any voluntary entering upon the struggle by plaintiff was relied upon, as set out in the instructions, it should have been set up in the anwer, which, in this case, was a mere general denial. O’Leary v. Rowan, 31 Mo. 117. If defendant by these means sought to excuse or justify his assault, he should have set up such defense by answer.

The jury having determined the issues of fact for the plaintiff, and as we have seen that the court committed no error, we have nothing to do other than affirm the judgment.

All concur.