McMillen v. Elder , 160 Mo. App. 399 ( 1911 )

CAULFIELD, J.

(after stating the facts). — I. Defendant first contends that the court erred in admitting the testimony of the two physicians as to the physical condition and treatment of the plaintiff. This contention cannot be considered by us for the reason, if for no other, that, so far as the abstract discloses, this evidence was offered and admitted in evidence without objection.

II. Defendant next contends that the court erred in refusing to give the instruction offered by him excluding from the consideration of the jury the question of punitive damages. In support of this instruction he asserts that the plaintiff failed “to show aggravated circumstances on the part of defendant or that defendant’s acts were maliciously done.” For the same reason he argues that the court erred in admitting • evidence of defendant’s financial condition. In making these and other contentions counsel for defendant incorrectly assume that in order to warrant the jury in assessing punitive damages against the defendant he must have been prompted by ill-will towards the plaintiff. “It is said generally that malice must exist to entitle the plaintiff to anything more than reparation for the injury; but it will be found that the word malice is always used, in such connections, not in its common acceptation of ill-will against a person, but in its legal sense, ‘Willfulness — a wrongful act, done intentionally, without just cause.’ [United States v. Taylor, 2 Sum. 586.] The term malice imports, according to its legal signification, nothing more than that the act is willful or intentional; and when used to qualify the character of a trespass, it is only employed to distinguish 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.” [Goetz v. Ambs, 27 Mo. 28, 33. See, also, McNamara v. St. Louis Transit Co., 182 Mo. 676, 81 S. W. 880.] In order for an assault and battery to be held to have been malicious so as to allow the assessment of punitive damages, it is sufficient that it was intentional and without just cause or excuse. “The legal meaning of the term (malice) is the intentional doing of a wrongful act without just cause or excuse.” [McNamara v. St. Louis Transit Co., 182 Mo. l. c. 681, 81 S. W. 880; Beck v. Railroad, 129 Mo. App. 7, 22, 108 S. W. 132.] In tke case at-bar the evidence of the plaintiff, which, we must assume, the jury accepted as true, was sufficient to convict defendant of intentionally doing a wrongful act, viz., assaulting and beating the plaintiff, without just cause or excuse. It would then, in the light of the foregoing, have been error for the court to have given the instruction offered by the defendant forbidding the allowance of punitive damages. This conclusion also disposes of the alleged error in admitting evidence of the defendant’s financial condition; for such evidence is admissible in a case where punitive damages may be assessed. [Baxter v. Magill, 127 Mo. App. 392, 398, 105 S. W. 679.]

III. Defendant next contends that the second instruction given by the court on behalf of the plaintiff was error for the reason that it authorized the jury to assess punitive damages without requiring them .to find malice. It is sufficient to say as to this that in an instruction given at defendant’s instance the court did require malice to be found as a condition to allowing punitive damages and in an instruction given at plaintiff’s instance correctly defined the meaning of the term, “malice.” Likewise there was no error in refusing defendant’s additional instructions on the subject of the defendant’s right of self-defense, for the reason that that subject had been fully and correctly covered in instructions already given at the instance of the defendant.

IY. Nor was it error to refuse the instruction offered by the defendant which told the jury that the “burden of proof” was upon the plaintiff, that phrase not being defined in that or any other instruction given or* offered. [Prince v. St. Louis Cotton Comp. Co., 112 Mo. App. 49, 66, 86 S. W. 873; Cramer v. Nelson, 128 Mo. App. 393, 399, 107 S. W. 450.]

Y. Lastly, we do not agree with the defendant that under the proof the amount of the verdict is excessive.

The judgment is affirmed.

Reynolds, P. J., and Nortoni, J., concur.