16 S.W. 398 (Mo. 1891), Gray v. McDonald

Citation:16 S.W. 398, 104 Mo. 303
Opinion Judge:Black, J.
Party Name:Gray v. McDonald, Appellant
Attorney:C. T. Garner & Son, J. L. Farris, J. A. Cross and F. Sheetz for appellant. Crosby Johnson, John E. Waite, Davis & Rogers, J. F. Harwood, J. D. Ross and C. H. Mansur for respondent.
Judge Panel:Black, J. Barclay, J., concurs in the conclusion reached and in the construction of section 4427 (R. S. 1889) but not in all the observations made touching exemplary damages in other cases.
Case Date:May 11, 1891
Court:Supreme Court of Missouri

Page 398

16 S.W. 398 (Mo. 1891)

104 Mo. 303

Gray

v.

McDonald, Appellant

Supreme Court of Missouri, First Division

May 11, 1891

Appeal from Livingston Circuit Court. -- Hon. James M. Davis, Judge.

Affirmed.

C. T. Garner & Son, J. L. Farris, J. A. Cross and F. Sheetz for appellant.

(1) Under the statute authorizing this action only the person who committed the homicide is liable. It is the wrongful act producing death which creates the liability. R. S. 1889, sec. 4426; Proctor v. Railroad, 64 Mo. 112; Dulaney v. Railroad, 21 Mo.App. 597; Jackson v. Railroad, 87 Mo. 424. (2) The presence of defendant at the difficulty and his not interfering to prevent it, his striking Gray with his fist after the shooting and the approval of the latter are not sufficient to create a liability. Gray v. McDonald, 28 Mo.App. 477; Cooper v. Johnson, 81 Mo. 483. (3) The record shows the homicide on the part of young McDonald was a justifiable or excusable one. Morgan v. Durfee, 69 Mo. 469; Nichols v. Winfrey, 79 Mo. 544. (4) The death of deceased was in part occasioned by his own concurring or contributory act which bars recovery in this case. Craig v. Sedalia, 63 Mo. 417; Kempinger v. Railroad, 3 Mo.App. 581; Smith v. St. Joseph, 45 Mo. 452; Smith v. Railroad, 61 Mo. 592; Powell v. Railroad, 76 Mo. 80; Henry v. Railroad, 76 Mo. 288. (5) The damages are excessive.

Crosby Johnson, John E. Waite, Davis & Rogers, J. F. Harwood, J. D. Ross and C. H. Mansur for respondent.

(1) The doctrine of contributory negligence has no application to cases of this sort. Gray v. McDonald, 28 Mo.App. 477; Besendecker v. Sale, 8 Mo.App. 211; Nichols v. Winfrey, 79 Mo. 544; McCue v. Klein, 48 Am. Rep. 260; 60 Tex. 168; Cooley on Torts [1 Ed.] 162. (2) If two persons by mutual consent, in anger, fight together, each is liable to the other for actual damages inflicted. Shay v. Thompson, 48 Am. Rep. 538; 59 Wis. 540; Cooley on Torts [1 Ed.] 159 and 163; Dole v. Erskine, 35 N.H. 503. (3) One who brings on a difficulty, with the purpose of killing his adversary and then does, in the course of the difficulty, kill him, cannot shield himself under the law of self-defense state v. Gilmore, 95 Mo. 554; State v. Parker, 96 Mo. 383. (4) As the son had brought on the difficulty, and the defendant was present and knew all the facts, neither the defendant nor his son had a right to kill Gray to save the son from peril which he had brought upon himself, until after the son had done all he could to avoid the killing of Gray. 2 Bish. Cr. Law, sec. 665; State v. Linney, 52 Mo. 40. (5) As defendant was present aiding and encouraging his son, he must be regarded as a principal and held responsible for the consequences of his son's acts. Gray v. McDonald, 28 Mo.App. 477; Cooper v. Johnson, 81 Mo. 483. (6) After the son had provoked the difficulty, the defendant could not legally take the life of Gray to save the son's, until the son had abandoned, or offered to abandon, the contest. Crowder v. State, 8 Lea, 669; State v. Greer, 22 W.Va. 800. (7) As the defendant stood ready to defend his son, he was guilty even though his assistance had not been given; for in such case his presence would have given encouragement to the son. Allred v. Bray, 41 Mo. 484; State v. Nelson, 98 Mo. 414; State v. Hildreth, 51 Am. Dec. 371, and note. (8) Evidence of the defendant's good character was improperly admitted, and cannot be considered in determining the case. Brown v. Evans, 17 F. 912; Elliott v. Russell, 92 Ind. 526; Sowell v. McDonald, 58 Miss. 281. (9) The court did not err in striking out the fourth count of the answer, pleading the acquittal of W. W. McDonald. The parties to that case, both plaintiff and defendant, were different from this. Hence, the judgment there was not evidence for or against either party. Freeman on Judg., sec. 319; Dugg v. Stumpe, 73 Mo. 513. (10) As the defendant in his instructions adopted the theory, that, if the defendant had aided his son in the difficulty, he was liable, he will not be heard to complain of the plaintiff's instructions. Bank v. Armstrong, 92 Mo. 265. (11) By adopting the same theory as to the facts that would make him liable, he is now estopped from saying that the theory was erroneous. Reilly v. Railroad, 94 Mo. 601. (12) There was no error in refusing the refused instructions, as, so far as they were correct, their principles were embraced in those given. Brown v. Railroad, 99 Mo. 310. (13) Where there are elements of wantonness and malice, the jury is authorized to award exemplary damages. Goetz v. Ambs, 27 Mo. 29; Kennedy v. Railroad, 36 Mo. 365; Welsh v. Stewart, 31 Mo.App. 376; Clark v. Fairley, 30 Mo.App. 336. (14) The jury were authorized to exercise discretion in awarding damages and the sum awarded was not excessive. Adams v. Railroad, 100 Mo. 555; Waldhier v. Railroad, 87 Mo. 38.

Black, J. Barclay, J., concurs in the conclusion reached and in the construction of section 4427 (R. S. 1889) but not in all the observations made touching exemplary damages in other cases.

OPINION

[104 Mo. 306] Black, J.

The plaintiff who is the widow of John Q. Gray brought this suit against William W. McDonald and William G. McDonald, to recover damages for killing her husband.

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