|||MISSOURI COURT OF APPEALS, SPRINGFIELD DISTRICT
424 S.W.2d 746
|||February 6, 1968
|||ROSWELL L. FORDYCE, PLAINTIFF-APPELLANT,
PRESS MONTGOMERY, DEFENDANT-RESPONDENT, AND RANDY MONTGOMERY, DEFENDANT
|||From the Circuit Court of Greene County; Civil Appeal From Action for
Damages (Monetary Recovery); Judge Jack A. Powell
|||Before Hogan P.j., Stone and Titus, JJ.
|||The opinion of the court was delivered by: Hogan
|||Plaintiff Roswell L. Fordyce was injured in the course of a fight between
defendant Randy Montgomery and one David Baldwin, Jr. In this action for
compensatory and punitive damages, a jury unanimously found the controverted
issues for the plaintiff, and assessed his actual damages at $650.00. In
separate findings, the jury also awarded plaintiff $1,500.00 as punitive
damages against defendant Randy Montgomery, and $3,000.00 as punitive damages
against defendant Press Montgomery. On motion, the trial court set aside
the award of punitive damages against defendant Press Montgomery, and the
plaintiff has appealed.
|||In the background, but pertinent to the matter in hand, is a dispute between
two sets of fathers and sons, defendant Press Montgomery and his son Randy,
and one David Baldwin and his son David, Jr. For convenience, we shall refer
to these persons as Press and Randy, and David and Junior.
|||Sometime before this assault took place, ill will had developed between
the Montgomerys and the Baldwins. During the afternoon in question, Press
telephoned Junior and asked to meet him at the Pickwick Supermarket, a grocery
store in Springfield, Missouri. David volunteered to take Junior to the
supermarket, and the three met there on the parking lot a short time afterward.
Very shortly, the three men got in a fight. Plaintiff's version of this
occurrence, given by David Baldwin, was that Press had been drinking, was
"mad and real beligerent (sic)," and that Press immediately began
to quarrel with Junior. Junior said, "You've been wantin' to hit me
for a long time," and Press asked, "David, how old are you?"
Junior answered that he was 21, and Press then turned around and hit David.
David then "grabbed hold" of Press, and Junior (who was 21 years
old, six feet tall and weighed 165 pounds) then "jumped onto"
Press. It is not clear how long this fight went on; Press did not testify
and none of the defendants' witnesses were present when it occurred. Mr.
Legan, who arrived on the parking lot shortly afterward, said that David
and Junior and Press were at the side of Press' car, that it was obvious
they had been fighting, and that Press' eye was bleeding and he "just
looked awful." Mr. Whiteley, who accompanied Mr. Legan, said that when
he and Legan got to the parking lot Press was "standin' there with
blood and stuff all over him ... and the Baldwins was standin' aside when
we pulled up ...." It is fairly inferable, at least from defendants'
evidence, that Press got considerably the worst of this initial encounter.
Press' physician, a Dr. Callaway, testified that he later examined Press,
and because the bruises and wounds he received bled and swelled considerably
he ordered Press to the hospital for the night.
|||At any rate, the initial fight broke off when Legan and Whiteley, who
were Press' employees, arrived. The Baldwins then retreated inside the store
and asked the manager to call the police. Defendant Randy arrived and found
Press standing by his car "with blood comin' down the side of his face."
The plaintiff, ignorant of this initial melee, was inside purchasing groceries.
He noticed two men, whom he later identified as the Baldwins, enter the
store and step to the manager's "cage." The two men stood there
and talked, and they appeared to be upset by something. After the Baldwins
entered, according to the plaintiff, four other men came in the store "at
a rush." Plaintiff identified these men as defendants Press and Randy
Montgomery, Legan and Whiteley. As they entered, Press said, "There
they are, let's get 'em." As Randy entered, he moved past a grocery
cart and picked up a large coke bottle. The Baldwins moved toward the back
of the store, and Junior picked up "a can of something." Randy
and Whiteley chased Junior, who pushed or ran behind the plaintiff as he
was being pursued. While plaintiff was trying to watch both groups of men,
he saw Randy coming directly at him with the coke bottle raised over his
head, apparently trying to strike Junior. The plaintiff could "see
it [the coke bottle] coming down in my eyes and nose so I threw my arm up
over my face," and consequently, plaintiff received the force of Randy's
blow, which fell on his left elbow. There is no doubt that plaintiff sustained
a painful injury.
|||Randy and Whiteley continued to chase Junior and finally "got hold
of" him, "knocked him from one counter to the next," and
finally got him down on the floor. Legan and Press then joined in the fight,
and "Mr. Legan helped hold the Baldwin boy down and Press ... kicked
him in the head several times." A few minutes later the police arrived
and the participants in this second fight were removed to the parking lot.
There, plaintiff testified, he "smelled alcohol" on Press' breath.
Plaintiff had never seen either Press or Randy Montgomery nor David or Junior
|||The plaintiff also had the evidence of David Baldwin, which by and large
corroborates his own. According to David, when he and Junior entered the
store there were "probably 15 or 20 other people" inside, and
when Press, Randy, Legan and Whiteley came in he repeatedly said, "Please
don't tear up the store." According to David, Junior had something
in his hand, Randy had several coke bottles in his hands, and "in the
scramble after they [Junior and Randy] got in behind the checkout counter,
Randy did swing this Coca-Cola bottle at just as hard as he could swing
it ... and ducked and this was when Mr. Fordyce got hit with the bottle."
David testified that "all four of 'em was on ... and Mr. Montgomery
kicked , I don't know how many times, with his foot. I saw that." David
denied any participation in the fight inside the store; he simply stood
and watched, he said, and attempted to persuade the participants to stop
by talking to them.
|||The defendants' version of the case came from Legan, Whiteley and Randy.
Legan said that shortly after he arrived Randy drove up and asked what was
going on, and was told that the Baldwins were in the store. Randy then started
in the store, followed by Legan and Whiteley, and Press came in last. Legan
attempted to persuade Randy not to go in, but he did anyway, and the other
men followed. Legan's purpose, he said, was "to break it up if there
was going to be any trouble." As he entered, Legan saw Junior picking
up cans, and Randy had "some object" in his hand. Randy and Junior
started fighting, Legan attempted to break it up "in the normal way
you would any fight, and pretty soon I was on the bottom." Legan knew
the plaintiff had been struck but could not say by whom. Whiteley's testimony
was that when he got inside the store Junior was already hitting Randy in
the head with "you know, cans, and everything," and he and Legan
were merely trying to separate the combatants. Whiteley saw no bottle in
Randy's hand. Press, Whiteley said, was simply trying to disarm Junior.
|||Randy testified that both Press and the other two men, Legan and Whiteley,
told him to stay out of the store. He entered anyway and picked up a coke
bottle as he passed an open cooler. Junior had a can of something in his
hand. After he grabbed the bottle he came up the aisle that Junior was standing
in, and that was when Press and the other two men came in. Junior took half
a dozen steps toward him, and "that's when we got together." Plaintiff,
Randy said, must have been "ten feet or so" from Junior, and "the
only way he could've gotten hit at all by either one of us would have been
to walk up there where the fight was takin' place." Randy had no idea
what he did with the bottle. Randy testified positively that his father
told him, "I wouldn't go in there," but that he was "enraged"
and went in the building with the specific intention of starting a fight.
|||We have recited the facts at length because the case comes to us on appeal
from the trial court's action in sustaining defendant Press Montgomery's
motion for judgment notwithstanding the verdict. We have some doubt that
Press' motion for directed verdict made at the close of all the evidence
was specific enough to serve the office of a demurrer to the evidence or
a request for a peremptory instruction directed solely to the question of
his liability for punitive damages, but we prefer to rule the case on the
merits and we do not undertake to discuss its procedural aspects. We do
note that since the case comes to us on appeal from an order sustaining
defendant Press Montgomery's after-trial motion for judgment, the question
for appellate review is whether reasonable minds could differ upon the question
of defendant Press Montgomery's liability for punitive damages, Cathey v.
De Weese, Mo., 289 S.W.2d 51, 52; Lowes v. Union Electric Co., Mo. App.,
405 S.W.2d 506, 512, and in determining that question we are required
to give plaintiff the benefit of all favorable evidence and the reasonable
inferences to be drawn therefrom, without undertaking to Judge the credibility
and weight of the testimony. Steele v. Woods, Mo., 327 S.W.2d 187, 191[1,2];
Bridges v. Arkansas-Missouri Power Co., Mo. App., 410 S.W.2d 106, 107-108.
|||The case was submitted to the jury on the general theory that the defendants,
acting in concert, had injured the plaintiff in the course of a wilful and
malicious attack on Junior Baldwin. The appellant argues here that since
the plaintiff proved defendant Randy acted maliciously in striking him,
and that the two defendants were acting in concert, it necessarily follows
that Randy's malice was imputed to Press, and Press must be held to respond
in punitive damages. The respondent answers this argument simply by saying
there is no evidence that the two co-defendants acted in concert, and therefore
Randy's malice cannot be imputed to Press.
|||While we mean no criticism of their presentations, we cannot fully agree
with the contentions of either party. Contrary to the respondent's assertion,
we believe there is substantial evidence that he and his son were acting
in concert. The plaintiff had evidence that the two defendants entered the
store together, that Press then said, "There they are, let's get 'em,"
and that Press blocked one of the possible means of exit while Randy and
Whiteley pursued Junior and threw him to the floor. There is further evidence
that Press kicked Junior several times after Junior was down. In our opinion,
this evidence was ample to show that the defendants were acting in concert,
and it would follow that the defendants were jointly and severally liable
to the plaintiff. Gray v. McDonald, 104 Mo. 303, 312, 16 S.W. 398, 400;
Brown v. Barr, 184 Mo. App.451, 455-456, 171 S.W. 4, 6. We agree with the
appellant that a jury could have found that Randy acted with the malice
essential to justify an assessment of punitive damages. In order to show
malice in the sense involved here, it was not necessary to prove that the
assailant was motivated by spite or ill will; it was sufficient to show
that the defendants committed a wrongful act intentionally and without just
cause or excuse. *fn1 Of course,
if the defendants intended an assault and battery upon Junior but succeeded
by mistake in injuring the plaintiff, then they were liable to the plaintiff
to the same extent as if he had been their intended victim, *fn2
and there is authority for the proposition that the animus of the principal
assailant is attributable to all who participate in the assault. *fn3
|||It would be highly artificial and unrealistic, however, to resolve the
merits of this appeal simply by saying that the malice of one co-defendant
must be imputed to the other. Our Supreme Court has recognized that the
joint and several liability of joint tort-feasors does not necessarily extent
to liability for punitive damages in a case of this kind; there may be differing
degrees of culpability among the co-defendants and a jury may properly assess
punitive damages against them in differing amounts. State ex rel. Hall v.
Cook, Mo., 400 S.W.2d 39, 40-42 [3-5]. It is well established that the
sufficiency of the evidence to warrant an assessment of punitive damages
is a matter of law for the court, Pinkley v. Rombauer, 231 Mo. App.1233,
1243, 87 S.W.2d 1045, 1049-1050; 4 Sedgwick, Damages, § 1318, pp. 2659-2660
(9th ed. 1912), and if the evidence indicated that one joint assailant acted
with malice, but also demonstrated beyond a difference of reasonable minds
that the other did not, then it would be error to permit an assessment of
punitive damages against the nonculpable defendant. If a trial court erroneously
permitted the assessment of punitive damages against such a nonculpable
defendant, we think it might appropriately set aside the erroneous award
on the ground that there was no substantial evidence to support it. See
State ex rel. Atchison, T. & S.F. Ry. Co. v. Ellison, 268 Mo. 225, 233-235,
186 S.W. 1075, 1076-1077. So, assuming that the trial court's action was
procedurally warranted, the question before us is whether, as a matter of
law, defendant Press Montgomery acted in such circumstances of extenuation
or excuse as to bar an award of punitive damages.
|||The evidence strongly indicates that defendant Press Montgomery was provoked;
in fact, it is subject to the construction that he received a severe beating
at the hands of Junior Baldwin immediately before the assault and battery
inside the store took place. Provocation does not justify or excuse an assault
and battery, nor relieve the defendant of liability for actual damages,
*fn4 but evidence of provocative
acts or conduct goes in mitigation of punitive damages, and if the provocation
furnished by the plaintiff is sufficient to negative the existence of malice
on the defendant's part, exemplary damages cannot be recovered. *fn5
The idea behind this principle is "... that one should not be punished
so extremely for an injury inflicted under strong provocation as he would
be for the same injury wantonly inflicted without any circumstances of excuse
or palliation." Yeager v. Berry, 82 Mo. App.534, 537. If, however,
the defendant responds to provocation with disproportionate measures of
reprisal, then the mitigating factor disappears and punitive damages may
be assessed. *fn6
|||We have carefully reviewed the evidence in this case, and have concluded
that the respondent's after-trial motion for judgment should not have been
sustained. There is evidence that defendant Press Montgomery was provoked.
Baldwin's testimony that Press was the original aggressor is very weak,
and he testified that during the preliminary encounter in the parking lot
he, Baldwin, "grabbed hold" of Press and Junior then "jumped
onto" Press. Junior was doing all the fighting, because "Press
wasn't in no condition to fight." There is other testimony that Press
bled profusely from the wounds he received in the parking lot, and that
his injuries were severe enough to require hospitalization overnight.
|||On the other hand, the evidence also indicates that Press' reprisal was
disproportionate to the provocation. We think a jury could reasonably have
found that Press encouraged his son and his two employees to pursue the
Baldwins into the store where a number of customers were peacefully shopping,
determined to even his score with Junior in complete disregard of their
rights. We do not agree with the trial court's view, expressed during the
trial, that Press' intent must be determined by his actions up to the time
the plaintiff was struck. We consider it material and relevant that he kicked
Junior a number of times, possibly in the head, after Junior had been overpowered
and thrown to the floor. II Wigmore, Evidence, § 396, p. 353 (3rd ed. 1940).
The defendants' actions strongly suggest vindictive measures of reprisal,
rather than a natural response to provocation; we think a jury could have
found that Press had actual malice in pursuing the Baldwins into the store,
and that an assessment of punitive damages against him was fully warranted
by the evidence. It therefore follows that Press' after-trial motion for
judgment should not have been sustained.
|||In accordance with the views expressed, it is ordered that the judgment
be reversed and remanded with directions to reinstate the verdict of the
jury and enter a judgment thereon accordingly.
|||Stone, J. concurs.
|||Titus, J. concurs.
|||*fn1 Beggs v. Universal C.I.T.
Credit Corp., Mo., 409 S.W.2d 719, 722-723[2-4]; Hodges v. Schuermann Building
& Realty Co., Mo. App., 174 S.W.2d 909, 914; Daggs v. St. Louis-San
Francisco Ry. Co., Mo. App., 51 S.W.2d 164, 169; Wingate v. Bunton, 193
Mo. App.470, 479, 186 S.W. 32, 35-36.
|||*fn2 Carnes v. Thompson, Mo.,
48 S.W.2d 903, 904[2,3]; Smith v. Moran, 43 Ill.App.2d 373, 193 N.E.2d 466,
469; Davis v. Collins, 69 S.C. 460, 48 S.E. 469, 472-473; Anno., 16
A.L.R. 771, 813, § IV b (1922).
|||*fn3 Rodgers v. Bryan, 82 Ariz.
143, 309 P.2d 773, 778; Reizenstein v. Clark, 104 Iowa 287, 73 N.W.
588, 590; Stark v. Epler, 59 Ore. 262, 117 P. 276, 278; Anno., supra, 16
A.L.R. at 815, § IV e.
|||*fn4 Hogsett v. Smith, Mo. App.,
229 S.W.2d 20, 22; Hodges v. Schuermann Building and Realty Co., supra,
174 S.W.2d at 913; Lawrence v. Womack, Mo. App., 23 S.W.2d 190, 192;
6 Am.Jur.2d Assault and Battery, § 151, pp. 128-129.
|||*fn5 Bond v. Williams, 279 Mo.
215, 221-222, 227, 214 S.W. 202, 204, 206 ; Powell v. Meiers, 54 N.D.
336, 209 N.W. 547, 550; Anno., supra, 16 A.L.R. at 816, § V a; 6 Am.Jur.2d
Assault and Battery, § 188, p. 155; 6 C.J.S. Assault and Battery, § 55(4),
|||*fn6 Philadelphia, Wilmington
& Baltimore R.R. Co. v. Larkin, 47 Md. 155, 28 Am.Rep. 442, 445; Powell
v. Meiers, supra, 54 N.D. 336, 209 N.W. at 550; Nichols v. Brabazon,
94 Wis. 549, 69 N.W. 342, 343; 6 Am.Jur.2d Assault and Battery, § 188,
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