Summary
In Cook v. Housewirth, Mo.App., 254 S.W.2d 283, and Chism v. Cowan, Mo., 425 S.W.2d 942, greater awards of punitive damages were upheld on appeal in assault and battery cases.
Summary of this case from Johnson v. American Mutual Liability Insurance Co.Opinion
No. 21810.
January 12, 1953.
APPEAL FROM THE CIRCUIT COURT, BUCHANAN COUNTY, EMMETT J. CROUSE, J.
J.V. Gaddy, St. Joseph, for appellants.
F. J. Frankenhoff, Price Shoemaker and Elmer E. Reital, St. Joseph, for respondent.
Plaintiff, Earnest L. Cook, sued Ernest W. and Iva V. Housewirth, husband and wife, and William Markham, defendants, for injuries received in a tavern owned and operated by the Housewirths. From a verdict and judgment in favor of plaintiff, against all defendants, in the amount of $650 actual, and $6225, punitive damages, defendants appeal.
The Housewirths owned and operated a tavern at St. Joseph, Missouri, known as the "Tower." Mr. Markham was employed as manager. Plaintiff was employed by a taxicab company. The assault occurred about midnight of April 15, 1951, and as a result of injuries received by plaintiff, he is totally blind in one eye.
Defendants urge that:
a. There is no evidence justifying submission of the issue of punitive damages;
b. The amount of the verdict for punitive damages is so excessive as to indicate the jury's bias and prejudice against defendants.
Plaintiff testified to the effect that he was, at the time this incident occurred, employed as a dispatcher for a taxicab company; that he had never previously visited defendants' place of business; that he entered the "Tower" for the purpose of delivering a message to one Myrtle Majewski, a patron of defendants; that Mr. Housewirth stood at the front of the place of business to collect "cover" charges from patrons; that plaintiff told him he wished to deliver a message to a patron and was permitted to enter without charge; that he saw Majewski seated at a table with two men; that he sat down at the table and told her that her child was ill, that she was wanted at home; that when he arose from the table another man shoved his chair back and stood up; that Housewirth appeared and asked if there was trouble; that, upon being informed there was no trouble, Housewirth left; that plaintiff and Majewski walked to the front of the building and Majewski's sister, Snipes, was called to the telephone; that Majewski took the telephone and talked, then handed it to Snipes; that plaintiff and Majewski started toward the door, to leave, whereupon he was struck in the back of the head by Housewirth; that, in falling forward, he pushed Majewski down and fell on her; that Housewirth seized his head and neck under one arm, choked him, and hit him in the mouth with his fist; that Markham appeared and squirted ammonia water in his face and eyes from a seltzer bottle; that he did not actually see the instrumentality; that about all he saw was the "squirt"; that his face was badly burned and the sight of his right eye was completely destroyed. It was shown that plaintiff had been twice convicted, once for petit larceny and once for grand larceny. Plaintiff had kept company with Myrtle Majewski for some time and lived at the home of her parents, where she also lived a part of the time.
Majewski testified to the effect that she arrived at the Tower about midnight, alone; that plaintiff came a few minutes later and sat at a table with her and two other men; that there was no disturbance but that Housewirth came to the table and inquired if there had been a disturbance; that she was going to call home; that there was a telephone call for her sister and she went to answer it; that plaintiff followed her; that she was going to leave because her little girl was ill; that she and plaintiff stood at the end of the bar, talking; that Housewirth came up behind plaintiff and said something; that both she and plaintiff turned around, then plaintiff fell against her, knocking her down; that she was unconscious for a time.
Julia Snipes, sister of Majewski, stated that she arrived at the place after midnight; that she had a telephone call and her sister handed her the instrument; that she heard a commotion, turned, and that her sister was on the floor with plaintiff on top of her, by the door; that Housewirth had plaintiff around the neck and struck him in the mouth; that she went around to aid her sister and ammonia was thrown in her eyes; that she could not see anything; that she, her sister, and plaintiff went to the sheriff's office, at the jail and, later, to the hospital; that she had sued defendants for damages growing out of the assault.
Mr. Housewirth stated, in effect, that there was a disturbance at plaintiff's table and he asked plaintiff about it; that plaintiff was urging Majewski to leave with him and she refused, saying that he would beat her up again; that one Spurgeon was at the table and plaintiff and Spurgeon had had an argument over Majewski; that, thereafter, near the door and telephone, plaintiff seized Majewski by the shoulders and pushed her backward out of the door; that she fell on her back with plaintiff on top of her; that he, Housewirth, seized plaintiff around the neck and pulled him off of Majewski but did not strike him; that he did not see Markham come up but smelled ammonia later; that he bought, and kept on the back bar, a small water pistol filled with ammonia water, to be used to quell disturbances that got out of hand; that Mrs. Housewirth was also present, collecting cover charges; that he seized plaintiff in order to protect Mrs. Majewski when plaintiff was attempting to strike her; that, because of a previous disturbance at his place of business, he had purchased the ammonia water and water pistol some fifteen days prior to this occasion.
Markham stated that he was manager of the business for the Housewirths; that he saw Housewirth and plaintiff struggling, seized the pistol and went to assist Housewirth; that plaintiff was flailing his arms and fists and struck and broke the pistol; that he did not squirt ammonia on plaintiff but that when the gun broke the contents came out onto Markham's hand and, in that manner, may have gotten on plaintiff's face. The broken parts of the gun were offered in evidence by defendants.
Defendants say that plaintiff pleaded that his injuries resulted from ammonia being squirted into his eyes from a "gun," but that he testified that it was squirted from a seltzer bottle. It is urged that if, as defendant says, the ammonia came accidentally from a broken water pistol instead of, intentionally, from a seltzer bottle, then defendants are not liable for punitive damages; that there is no evidence to the effect that the Housewirths knew or approved of the keeping of a seltzer bottle loaded with ammonia water. It is contended that the issue of punitive damages should not have been submitted.
There was ample evidence, from defendants themselves, from which a legitimate inference may be drawn that Markham intentionally squirted ammonia water in plaintiff's face from a gun kept by the Housewirths for use in case of disturbances. Plaintiff pleaded that the substance was squirted from a "gun," but he testified to the effect that he thought it came from a bottle; that he did not see it (the instrumentality); that he saw the "squirt" coming at him. The allegation, as made, was proved by defendants themselves, as to the instrumentality; and plaintiff stated that it was "squirted" at him. Whether or not it was intentionally squirted was a question for the jury under the evidence.
Malice is the intentional doing of a wrongful act without just cause or legal excuse. The party charged must have had conscious knowledge, when committing the act, or he must have acted with such recklessness that a conscious wrongdoing is necessarily implied, or the act must have been with a bad motive. Gerharter v. Mitchellhill Seed Co., 157 S.W.2d 577, 581.
Under the evidence in this case, the ammonia gun was kept loaded for the purpose of squirting ammonia in the faces of people who "got out of hand" in this tavern; and the jury could have found that Markham used it on plaintiff with the tacit, or the actual knowledge and approval of the Housewirths, both of whom were present.
Housewirth stated that he had previously cautioned plaintiff about arguments and disturbances in the tavern, and that he saw plaintiff seize Majewski, push her down and attempt to strike her. Plaintiff and Majewski stated that there was no disturbance or argument as between them at any time; and plaintiff and Snipes stated that Housewirth struck plaintiff without cause, whereupon Markham appeared and squirted ammonia in plaintiff's face and eye, causing him to be blind in one eye. This constituted evidence for the jury's consideration on the manner of, and motive for, the occurrence. Under the circumstances the jury could have believed that there was actual or express malice. Gerharter v. Mitchellhill Seed Co., supra.
However, it has been said: "In order to recover punitive damages it is not necessary to prove express malice. It is sufficient that the assault was done wantonly, wickedly and without due regard of the rights of the plaintiff. It is sufficient if the act is wanton, gross and outrageous." Daggs v. St. Louis-San Francisco Ry. Co., Mo.App., 51 S.W.2d 164, 169. Malice may be implied from reckless disregard of another's rights and interests. Spitzengel v. Greenlease Motor Car Co., 234 Mo.App. 962, 136 S.W.2d 100, 104. If, as the jury evidently believed, defendants wilfully squirted ammonia water into plaintiff's eye so as to destroy the vision thereof, it doesn't matter whether or not there was express malice.
The court did not err in submitting the issue of punitive damages.
Defendants contend that the amount of the verdict for punitive damages shows on its face that it is the result of bias and prejudice; that it is sufficient to shock the conscience of the court.
It has repeatedly been held that the amount which the verdict for actual damages bears to that for punitive damages is not particularly significant. "Exemplary damages are inflicted by way of punishment for the doing of an act maliciously and are proportioned to the degree of malice, criminality, or contumely characterizing the act, to the age, sex, health, and character of the injured party, the intelligence, * * * and affluence of the tort-feasor, and other like circumstances." State ex rel. v. Shain, 341 Mo. 733, 108 S.W.2d 351, 356.
In the case at bar actual damages were shown. Plaintiff was confined to hospital for a period of sixteen days and remained away from work for a period of two weeks thereafter. He was treated by a physician over a period of several weeks and the physician, as well as plaintiff, stated that there is practically a total, permanent loss of vision of the right eye. The injuries shown would have supported a much larger verdict than the $650 allowed.
Perhaps the jury believed that tavern owners ought to be deterred from maiming such of their patrons as might be overcome, or become violent, from the products sold by the host.
Whatever the reason for assessing a moderate amount for actual damages, and ten times that amount as exemplary damages, we cannot say that it was error. The verdict, in this case, does not shock our judicial conscience.
The judgment should be affirmed.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court.
The judgment is affirmed.
All concur.