Butterfield v. Butterfield

Missouri Court of Appeals

Butterfield v. Butterfield

187 S.W. 295, 195 Mo. App. 37, 1916 Mo. App. LEXIS 121

CourtMissouri Court of Appeals

DecidedJune 12, 1916

StatusPublished

Cited by8 cases

This text of 187 S.W. 295 (Butterfield v. Butterfield) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Butterfield v. Butterfield, 187 S.W. 295, 195 Mo. App. 37, 1916 Mo. App. LEXIS 121 (Mo. Ct. App. 1916).

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Opinions

ELLISON, P. J.

Plaintiff’s action is to recover damages resulting from an assault and battery- alleged to have been committed upon her by defendant. She recovered judgment in the trial court.

' It appears by the record that at the time of the as: sault and battery plaintiff was defendant’s wife. Under •the common law, the husband or wife was not liable in a civil action to the other for a personal tort. And our statutes including the Married Woman’s Act, has not changed the rule. In a recent opinion written by Judge Walker, the Supreme Court has fully discussed this question and we refer thereto in support of our judgment herein. [Rogers v. Rogers, 265 Mo. 200.]

Plaintiff, after obtaining this judgment without a shadow of legal right, has sought to interpose various technical objections to being deprived of it. It appears that that part of the answer setting up the marriage was erroneously stricken out on plaintiff’s motion which left nothing but a general denial. Plaintiff insists that since the defendant did not save that point in his motion for new trial he waved it. This was such character of motion as amounted, to all intents and purposes, to a demurrer and the court’s action is saved without being-embodied in a motion for new trial. [State ex rel. v. Ellison, 182 S. W. 998; Shohoney v. Railroad, 231 Mo. 131, 148.]

But aside from that, the proof was made during the trial and a peremptory instruction was asked by defendant and refused, and an exception to the ruling- was duly preserved.

[39]*39The evidence that the parties were husband and wife at the time of the assault consisted of a record of the circuit court of Clay county of a divorce proceeding instituted by defendant against plaintiff in that county wherein the petition alleged a marriage at a date prior to the assault and the petition was adjudged to be confessed and a decree was rendered. This was evidence tending to show they were husband and wife, and there was no evidence to the contrary.

The judgment should be reversed.

All concur.

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ELLISON, P. J.

Plaintiff’s action is to recover damages resulting from an assault and battery- alleged to have been committed upon her by defendant. She recovered judgment in the trial court.

' It appears by the record that at the time of the as: sault and battery plaintiff was defendant’s wife. Under •the common law, the husband or wife was not liable in a civil action to the other for a personal tort. And our statutes including the Married Woman’s Act, has not changed the rule. In a recent opinion written by Judge Walker, the Supreme Court has fully discussed this question and we refer thereto in support of our judgment herein. [Rogers v. Rogers, 265 Mo. 200.]

Plaintiff, after obtaining this judgment without a shadow of legal right, has sought to interpose various technical objections to being deprived of it. It appears that that part of the answer setting up the marriage was erroneously stricken out on plaintiff’s motion which left nothing but a general denial. Plaintiff insists that since the defendant did not save that point in his motion for new trial he waved it. This was such character of motion as amounted, to all intents and purposes, to a demurrer and the court’s action is saved without being-embodied in a motion for new trial. [State ex rel. v. Ellison, 182 S. W. 998; Shohoney v. Railroad, 231 Mo. 131, 148.]

But aside from that, the proof was made during the trial and a peremptory instruction was asked by defendant and refused, and an exception to the ruling- was duly preserved.

[39]*39The evidence that the parties were husband and wife at the time of the assault consisted of a record of the circuit court of Clay county of a divorce proceeding instituted by defendant against plaintiff in that county wherein the petition alleged a marriage at a date prior to the assault and the petition was adjudged to be confessed and a decree was rendered. This was evidence tending to show they were husband and wife, and there was no evidence to the contrary.

The judgment should be reversed.

All concur.

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Bluebook (online)

187 S.W. 295, 195 Mo. App. 37, 1916 Mo. App. LEXIS 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butterfield-v-butterfield-moctapp-1916.

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