Opinion
No. 28411.
September 16, 1952. Motion for Rehearing or for Transfer to Supreme Court Denied October 17, 1952.
APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY, JOHN A. WITTHAUS, J.
Arthur U. Simmons, Ludwig Mayer, Clayton, for appellant.
Carl E. Starkloff, Clayton, for respondent.
This is an action by Verna G. Stanley, as plaintiff, against the defendant, W. H. Stanley, for damages for assault and battery alleged to have been committed upon plaintiff by the defendant. The trial below resulted in a verdict and judgment in favor of plaintiff in the sum of $3,000 actual damages and $7,000 punitive damages. This judgment was reduced by remittitur to one in favor of plaintiff for $1,000 actual damages and $4,000 punitive damages. From this judgment, defendant appealed.
In his points relied on appellant avers that the court erred (1) in submitting to the jury the issue of punitive damages; (2) in refusing to instruct the jury that neither passion, prejudice, nor sympathy should influence the jury in deciding the case; and (3) in denying defendant's motion for a mistrial for alleged improper remarks of plaintiff's counsel made in the presence of the jury during a recess in the trial. It is also urged that the verdict is so excessive as to indicate that it was the result of bias, passion, and prejudice on the part of the jury.
At the time of the alleged assault plaintiff was married to Donald Stanley, a brother of the defendant, W. H. Stanley. Plaintiff's age was fifty years, and her husband's thirty-nine years. Plaintiff and her husband lived at the home of the defendant. They did not pay board; however, plaintiff kept house for the brothers and took care of defendant's small granddaughter who also resided at defendant's home. Donald Stanley, plaintiff's husband, was in the employ of defendant. Defendant conducted an electrical appliance business at 5069 Delmar Boulevard in St. Louis.
Plaintiff testified that on the night of November 30, 1950, she retired to her bedroom about 10:00 p.m. Neither defendant nor plaintiff's husband was home at the time. Plaintiff thereafter went to sleep, but was awakened around midnight when W. H. Stanley arrived home. She stated that after defendant arrived he opened her bedroom door and inquired of her whether her husband was home. Plaintiff replied that her husband was not home. Defendant then closed the bedroom door, but shortly thereafter reappeared and made inquiry concerning his granddaughter who had been ill with a cold. Plaintiff informed defendant that she thought the granddaughter was "a little better". Defendant then left plaintiff's bedroom and plaintiff went back to bed. Thereafter, at about two o'clock, plaintiff's husband arrived. Plaintiff arose and opened the door for her husband and then retired to her room. Plaintiff did not have any conversation with her husband at that time. She stated, however, that as she was returning to her room the defendant called out, "Verna, is that you?", and she replied that it was and that she was letting her husband into the house. She further stated that defendant then "got up and went out to the part of the house that my husband was in * * * and very shortly my husband came in the bedroom and he made the remark that he was tired of so many people trying to run his life, and that the whole thing stunk * * * and he merely turned away and he said, `You do too' * * * and he got up and left the room. * * * I assumed he went either to the bathroom or the kitchen * * * he hadn't any more than left the room until W. H. Stanley was in my room and turned on the light and came over to the bed, and I was sleeping on the far side of the bed, and he reached over and started hitting me * * * he said `you son of a bitch, you don't know how to handle a man' and he kept hitting me on the side of my face." Plaintiff further testified:
"Q. What part of your head or body did he strike at that time? A. well, at the time it was all on my left half, the left side of my face, and my eye and cheek and lip, and the blows were on other parts of my chest. Then he grabs me by the arm and starts to pull me out * * * and he grabbed both of my legs and pulled me across the bed, kind of cater-cornered across, and then kicked me * * * in the back and on the shoulder, then I crawled back to bed. * * * I was trying to get out of the way, and I crawled back in bed."
Plaintiff stated her husband was not present at the time, but was somewhere in the house. Plaintiff further testified:
"* * * he pulled me twice to the floor, and the first time I returned back to bed, and then he came after me again with his foul language and slapped me and pulled me out the second time on the floor and then he ordered me out of the house. * * * he called me a `son of a bitch' * * * I attempted to pack * * * and I didn't have too many things, and I was able to get them in three suit cases * * * and as I was packing these different things which I had out on the floor, he would come along and upset them so I would have to repack them. * * * he was white and wild eyed * * * most of the time he was either kicking me or upsetting my things; as I would be putting them back in the bags he would upset them, and then would haul off and hit me, and at one time he grabbed the things I had in a little side compartment in my case, and he grabbed them and I had to grab for them, * * * and he kept slipping on his pajamas and he hit me three or four times more, for the simple reason he had torn his pajamas. * * * I got dressed and he left the room to make a telephone call and I heard part of the conversation, and he called somebody and he said, `Well, I just kicked her ass out'. * * *
"Q. Where was your husband during all this time? A. * * * W. H. called him in and he appeared * * * and he said, `Well, now, I want you to get your ass out,' and he pointed his finger at me, and then he slapped me * * * on the side of the face.
"Q. That was your husband? A. Yes, sir. And then he went over and sat down on the bed and never left there."
Plaintiff further testified that she asked to be allowed to call a taxicab but that defendant would not permit her to do so. Plaintiff then left with her baggage. It was about 2:30 a. m. at the time. She stated:
"When I got to the corner I looked and there was no automobile coming along, and it was very quiet, and I put my bags alongside of the mail box, and then I looked over the neighborhood and I went to the house across the street on Berick Drive, and they had a light on in the rear part of the house and I wanted to have a taxicab called for me, and no one came to the door, and I went and I think I stopped one house from the corner, and there I rang that doorbell and there was no light there, and I went back and picked up my bags again, and then I arrived at the third house and that happened to be your place, and you admitted me. * * * You let me in and then your wife appeared."
The house referred to by plaintiff was the home of her attorney, Carl E. Starkloff. Plaintiff further testified that when she arrived at Mr. Starkloff's home she "had a big blue spot on my eye and upon the lower lid, and I had a severe pain on my cheekbone, and my lips were cut both inside and a blister on the outside, and I had a scratch on this arm and, of course naturally the next day it was when they noticed the bruise on my back. * * * I had a scratched place on my right arm * * * and on my left arm, and it had been twisted, and there were also lacerations and a black and blue spot and just red marks from his hand twisting it, and I had them on my legs — I mean the finger marks where he pulled me across the bed."
Plaintiff further testified that she stayed the rest of the night with the Starkloffs and was then taken to the office of Dr. Max Starkloff. Dr. Starkloff gave her medicine for her nervous condition.
Mrs. Carl Starkloff testified:
"I was awakened about three o'clock in the morning and we heard this terrible knocking on the door and Mr. Starkloff went to the door and opened it, and I went in and I saw Mrs. Stanley for the first time. * * * Her hands were shaking and her lips were trembling so, and her clothes were apparently thrown on hurriedly because her hat was awry, and she just looked from one to the other. * * * She cried so terribly, I just let her cry, and she was terribly embarrassed because she called us, and her hands were shaking so I fixed her a cup of coffee and it just slobbered all over the saucer, and I wanted her to talk about it, and she would feel better, and she said no, she didn't want to talk about it, and I finally persuaded her and she might feel better if she would tell us about it * * * her eyes looked terrible, and they were all red, and this one here was a deep red purple * * * after I had talked to her awhile, and we talked about an hour, and I persuaded her to go to bed, and she awakened about seven o'clock."
On cross-examination Mrs. Starkloff testified that she had theretofore had some difficulty with the defendant in a conversation over the telephone with reference to the use of the telephone which was on a party line with defendant.
The defendant, W. H. Stanley, was called as a witness by plaintiff for the purpose of interrogating him concerning his financial condition. The whole of his direct examination was taken up with this line of questioning. It will not be necessary to review said testimony because it is not relevant to any issue on this appeal. Suffice it to say that one reading said testimony cannot help but be impressed with the untruthfulness of the witness.
On cross-examination, defendant, under the direction of his counsel, gave his version of the events which occurred at his home during the night of November 30th and the early morning of December 1, 1950.
Defendant testified he came home by himself the evening of November 30th and that his brother Donald, plaintiff's husband, had an appointment with a woman and did not come home. He stated that when he arrived home plaintiff inquired as to the whereabouts of her husband and that he told plaintiff he did not know where her husband was. Defendant then inquired of plaintiff about the baby, and thereafter retired to his room. Defendant further testified that sometime later he was awakened about 2:00 a. m. by plaintiff and her husband fighting and arguing. They were in the kitchen at the time, and defendant went there and asked them to be quiet. This they did, but some time later they engaged in a struggle in the hallway near the bathroom. Defendant testified that plaintiff picked up a wooden coat hanger and started to beat her husband with it. He stated that he pulled plaintiff away from his brother and that plaintiff became angry with him and grabbed for and tore the jacket of his pajamas. Defendant further testified that he then told plaintiff to get out of the house and offered to send her to California by plane; that he told both plaintiff and her husband he would not permit them to stay in his house any longer if they kept on arguing and fighting like they had been. Defendant also testified that his brother was at said time so intoxicated that he really did not know what he was doing.
Defendant then testified that it was his brother who ordered plaintiff out of the house; that he did not refuse plaintiff the use of the telephone; that he saw his brother strike the plaintiff; that he himself had no cause or reason to strike her or to argue with her; that he neither offered nor refused transportation to the plaintiff when she left, because he considered the quarrel as his brother's and not his own; that he did not attempt to interfere with the quarrel other than to try to stop them from fighting in the house, and then only after they had been fighting and making a lot of noise for some time. Defendant also denied that he in any manner interfered with the plaintiff's packing of her suitcases, but stated that while she was doing so he saw Donald abuse her. Defendant denied that he called plaintiff a "son of a bitch" on the occasion, and further stated that he did not recall ever calling her such a name.
On December 8, 1950, plaintiff filed suit for a divorce from her husband. The petition in the divorce suit was introduced into evidence by the defendant herein. Said petition contained allegations charging her husband with various acts of cruelty. It also charged that her husband had acquiesced in the defendant's conduct on the night in question, and had made no effort to protect her from the assault made upon her by defendant at said time. There were also allegations that W. H. Stanley on two previous occasions had cursed and abused plaintiff in the presence of her husband, and that the latter stood by and made no protest or objection to such mistreatment.
Dr. Max Starkloff testified that on December 1, 1950, he had occasion to observe and treat Mrs. Stanley; that she was very nervous and showed marks and bruises on her face and around her eye; that she had a contusion of the left check, a contusion around the eye and lower lid, and a small laceration on the inside of the lip and on the outside of the lower lip, and that she complained of pain in her neck. He stated that he gave her a sedative and advised her to go home and rest.
Appellant contends that the issue of punitive damages should not have been submitted to the jury for the reason that the evidence affords no basis for a finding that defendant made a willful, wrongful and malicious assault upon the plaintiff. In support of this contention, appellant relies upon portions of plaintiff's testimony from which he claims inferences favorable to the defense should be drawn, and the testimony of the defendant himself which completely exonerates him from any wrongful conduct. It is defendant's position that plaintiff is bound by the testimony of defendant because the latter was placed on the stand by plaintiff. Such theory finds no support in the authorities. Where a party desires to prove an essential part of his case by his opponent, he may do so, and he is only bound by such part of his adversary's testimony which he himself offers and vouches for as the truth. Jones v. Chicago, R. I. P. Ry. Co., 341 Mo. 640, 108 S.W.2d 94.
It is also a well established rule that in passing on the question as to whether a plaintiff has made a case for the jury on an issue pleaded, this court must accept as true all evidence favorable to the plaintiff's case, and allow him the benefit of all reasonable inferences that may be drawn from the evidence favorable to his cause. Tash v. St. Louis-San Francisco Ry. Co., 335 Mo. 1148, 76 S.W.2d 690.
With the foregoing rules in mind, we have examined the record in this case and have concluded that there is ample evidence to warrant the trial court in submitting to the jury the issue of punitive damages.
The court did not err in refusing to instruct the jury that they should not be influenced in their verdict by passion, prejudice or sympathy. The giving or refusing of cautionary instructions rests within the sound discretion of the trial court. Myers v. Chicago, B. Q. R. Co., 296 Mo. 239, 246 S.W. 257; Wolfson v. Cohen, Mo.Sup., 55 S.W.2d 677. There is nothing in the record to indicate a need for said instruction. The trial court fairly and properly instructed as to all the issues involved. Under such circumstances, it was not an abuse of discretion to refuse the requested instruction. Klinginsmith v. Mutual Benefit Health Accident Ass'n, 228 Mo.App. 229, 64 S.W.2d 705; Goggin v. Schoening, Mo.App., 199 S.W.2d 87.
During a recess in the trial there was a sharp exchange of words between plaintiff's counsel and the defendant. The court and jury were present in the courtroom at the time. The jury were leaving the jury box and were passing from the courtroom toward the hallway. The altercation took place, according to the record, "about midway between the portion of the courtroom reserved for attorneys and litigants and the portion of the courtroom used for spectators." Defendant's counsel moved for a mistrial, "for the reason that the attorney for the plaintiff raised his voice in a loud and unusual manner, telling the defendant * * * that he was just as tough as he was, and that by reason of such statement indicated that there was an argument, and as a result thereof may prejudice the jury against the defendant."
Counsel for plaintiff, in explanation of the occurrence, stated that after the court declared the recess he "came around the front of the table and started west toward the swinging gate, and as I passed W. H. Stanley he stated to me, `You think you are a tough son-of-a-bitch, don't you?' and `Well, I will get you when this is over'. Whereupon, I made a statement in reply to Mr. Stanley to the effect that I was as tough as he was and I can't say that my tone was any louder than that of Mr. Stanley * * *."
The defendant, W. H. Stanley, made no statement to the court as to his version of the incident. He did not deny that the statement made by plaintiff's attorney was correct.
Ludwig Mayer, one of defendant's attorneys, stated: "I was standing near the gateway and my attention was rather suddenly focused upon an exchange of words between Mr. Starkloff and Mr. W. H. Stanley, and I didn't either grasp or understand the exact words or what happened. * * * Mr. Starkloff raised his voice to such an extent that the jury and everyone else in the courtroom was attracted to the argument. * * * I heard both Mr. Stanley and Mr. Starkloff's voice. It was in a conversational tone."
The court then inquired of the jury if any of the members thereof had heard the conversation in question. Several jurors raised their hands indicating that they had. The court then interrogated said jurors. Juror number three said: "I didn't see anything but I started to walk out and I heard the sound of voices. As I walked around I saw Mr. Stanley standing there, and I assume that he had said something." Juror number one said: "Well, I saw the defendant, Mr. Stanley, standing to one side as Mr. Starkloff seemingly was going toward the gate, and Mr. Starkloff protesting having been insulted." This juror also stated that he did not hear anything that was said. Juror number nine stated that she heard Mr. Starkloff say, "Don't get tough with me, I don't want to start anything with you, I am not speaking to you." She further stated that the "other man said something and this gentleman got up from his chair." Juror number eight stated: "This man said, `Don't start nothing with me,' and that is all I heard." Juror eleven stated: "I knew there were words, but I couldn't repeat the words I did hear * * *."
Each of the jurors questioned stated he would not be influenced in reaching a decision by what had been heard or seen. The court thereupon overruled the motion for mistrial.
In our opinion, the action of the court in overruling the motion for mistrial was proper. There is no abuse of discretion shown.
After a careful consideration of the facts in the case, we are convinced that although the original verdict was excessive, it was not so excessive as to indicate bias and prejudice on the part of the jury. The verdict for actual damages as reduced by remittitur is, in our judgment, proper. It will no more than adequately compensate plaintiff for the injuries she sustained. Nor do we feel justified in disturbing the verdict for punitive damages. There is no fixed and uniform standard for the assessment of punitive damages in cases of this character, but in fixing the amount to be allowed consideration must be given not only to what is due the plaintiff, but to the public as well, for acts which are opposed to the public peace and good order should be punished in such a way as to discourage their repetition. Custer v. Kroeger, 209 Mo.App. 450, 240 S.W. 241.
Considering the character of the assault and the circumstances attending same, which disclosed a total want of provocation therefor, if plaintiff's evidence is to be believed, we are of the opinion that the allowance of $4,000 as punitive damages is entirely just and proper.
Finding no error in the record, the judgment appealed from is affirmed.
BENNICK, P. J., and HOLMAN, J., concur.