This is an action which was brought to recover damages for an assault. There was a trial resulting in a judgment for the plaintiff. The defendant appealed.
The defendant assigns as a ground for the reversal of the judgment the action of the court in overruling his motion to
AtrPití'practíc?f siieluf;1 dlscretion of court. The affidavit of the plaintiff charging that the sheriff was prejudiced was not conclusive on the court. It was not bound to take the charge in the verified motion as true, though, in the exercise of its discretion, it might do so. If it was satisfied that the sheriff was # -it p t. _ prejudiced, and therefore disqualified to act, that was an end of the matter, unless it appeared, as it does not, that there was an abuse by the court of the discretion exercised by it. State v. Leabo, 89 Mo. 247; State v. Hultz, 106 Mo. 41. We do not think the action of the court in adjudging that the sheriff was disqualified from acting is the subject of review by us.
The special panel, not having been selected and summoned by an officer of the law, should, as we think, have been quashed on defendant’s motion. The defendant had the right to a special panel of jurors selected and summoned by the officer upon whom that duty was devolved by law, and that this right was denied him we think is clear. "We can not say that he was not in no way harmed thereby.
Ablttery:adfmacomment*.uctlons: The defendant objects that the court erred in giving the plaintiff’s first instruction which, in a separate paragraph thereof, declared to the jury: “Compensatory or actual damages are such as will reasonably compensate the plaintiff for his loss of time, expense of treatment of the injuries sustained by
The petition in substance alleged that the defendant with a knife willfully, maliciously andwantonlyassaultedtheplaintiff and cut an eye out. There was a denial of this allegation in the answer, coupled with the defense of son assault demesn There was no admission by the answer of the assault alleged in the petition. Whether the defendant did assault the plaintiff, as alleged in his petition, was the distinct issue in the case. This issue was submitted to the consideration of the jury by the plaintiff’s second and third instructions, as well as by the first given for the defendant.
But the plaintiff’s first instruction left nothing for the jury to determine except as to the amount of the actual damage that should be awarded. It assumed that the actionable assault alleged in the petition had been committed and that it only remained for the jury to determine the quantum of compensatory damages that should be allowed. It eliminated from the case the vital and decisive issue therein. It practically-told the jury to wholly disregard the defenses pleaded by defendant, as well as the evidence adduced by him tending to support such defenses. It is always error for an instruction to assume as true a controverted material fact in a case. Wright v. Fonda, 44 Mo. App. loc. cit. 643; Fullerton v. Fordyce, 121 Mo. loc. cit. 13.
The defendant further objects that this instruction was a comment on the evidence. It seems to us that it is fairly subject to this criticism. It gave the jury to understand that in the opinion of the court defendant was the assailant and that
The plaintiff’s third instruction is not subject to the objection the defendant has lodged against it. It does not assume that an assault was made by defendant on him. It told the jury that if they found the issues for plaintiff, then to allow him such actual damages as was “occasioned by the assault.” This was but telling the jury that if they found the issue in respect to the assault in favor of the plaintiff, then they should allow him such actual damages as was occasioned by the assault. We can not think this instruction faulty in expression.
- — —: medical services: instrucuon. It is further objected that the plaintiff’s fifth instruction was erroneous. It told the jury that in considering the amount which plaintiff was entitled to recover for medical services it was not necessary to prove that . . the bill for such services had been paid, but that it was sufficient to authorize a recovery thereof if they believed that plaintiff had incurred an obligation to pay therefor. This instruction, by implication,
—: evidence: compensation: instruction. No good reason is seen for the action of the court in rejecting the defendant’s offer of evidence tending to prove a conspiracy between the plaintiff and Wilson to assault him. A formal agreement to commit - . - ...... an assault is not always susceptible oi direct and positive proof. Most generally it must be inferred from such facts and circumstances as the evidence tends to prove. The defendant, it seems to us, had a right to introduce the evidence offered by him to develop, as far as he cofild, to the jury his theory of the conspiracy. If such evidence turned out to be insufficient to entitle him to have a consideration of his defense by the jury on that theory, the court could have so declared by a proper instruction.
It results from the foregoing considerations that the judgment must be reversed and the cause remanded.