Perkins v. Wilcox

• Decision Date: 19 June 1922
• Docket Number: No. 22867.,22867.
• Citation: 294 Mo. 700,242 S.W. 974
• Parties: PERKINS v. WILCOX.
• Court: Missouri Supreme Court

242 S.W. 974

294 Mo. 700

PERKINS v. WILCOX.

No. 22867.

Supreme Court of Missouri, Division No. 2.

Motion for Rehearing Overruled June 8, 1922.

June 19, 1922.

Appeal from Circuit Court, `Christian County; Fred Stewart, Judge.

Action by R. J. Perkins against B. F. Wilcox to recover damages for the death of plaintiff's husband. Judgment for plaintiff, and defendant appeals. Reversed.

This action was commenced by plaintiff, as the widow of W. C. Perkins, deceased, in the circuit court of Polk county, Mo., and transferred by change of venue to Christian county, in said state.

The first count of petition alleges that plaintiff is the widow of said W.C. Perkins, who departed this life on April 8, 1919, leaving said plaintiff and four small children; that on the _____ day of December, 1918, her said husband contracted influenza, and, by reason thereof, was confined to his bed from said date until the 8th day of January, 1919; that on said last-mentioned date he was improving physically, and convalescing rapidly, so that he would have recovered from said illness, if defendant had not committed the acts hereafter alleged; that on January 8, 1919, defendant wrongfully and maliciously, knowing that said W. C. Perkins was sick as aforesaid, caused the constable of Marion township, Polk county, Mo., to go to the home of plaintiff and her said husband, and wrongfully and maliciously caused, instigated, encouraged, and aided said constable to make an assault on her husband's father, by shooting him with a loaded revolver in the presence of her said husband, and also instigated the arrest of her husband's father by said constable; that by reason of the foregoing, and the belief of her husband that his father had been shot and fatally wounded, and owing to her husband's weak physical condition at the time, he became greatly agitated, nervous, and excited; that by reason of the foregoing her husband wan compelled to drive from their home, unassisted, improperly wrapped and clothed, in a buggy, in cold, damp, windy weather, a great distance; that by reason of his excitement, agitation, and nervousness, caused by defendant's acts aforesaid, and by reason of his exposure aforesaid, the disease from which he was then suffering was aggravated, its virulence increased, and finally caused his death on April 8, 1919; that by reason of defendant's conduct aforesaid, and the death of her husband, she lost the aid, support, and comfort of the latter; that he was 32 years of age, possessed splendid habits, and contributed annually from $600 to $1,000 to the support of his family. Said first count concludes with a prayer for $10.000 actual damages and $15,000 punitive damages.

The second count of petition is practically the same as the first, except it charges that the acts of defendant complained of "contributed to and hastened the death of her husband, by reason of which she lost his aid, support, and comfort."

Defendant demurred to each count of said petition, and his demurrers thereto were overruled.

The answer to the first count contains a general denial. It also alleges, that all of the constable's acts were performed as a part of his duties, as such constable, in the service of the writ of execution then in his hands for service and in the necessary defense of his person from danger at the hands of deceased's father, etc. Defendant's answer to the second count of petition was similar to the one filed as to the first count.

It appears from the evidence: That defendant was the owner of about 370 acres of land near Pleasant Rope, in Polk county, Mo. That in the spring of 1918 respondent and her husband rented a part of said land, and were to vacate the same when the crop thereon was made. That on January 8, 1919, they were still occupying said premises. That, on their failure to vacate the same under the agreement, defendant commenced an action in the justice's court of Polk county, Mo., to recover possession of said land. That on December 11, 1918, he recovered a judgment against plaintiff's husband for the possession of said premises, for $25 as damages, and for the costs incurred in said action. That an execution was issued on said judgment on said December 11, 1918. That at this time some of respondent's family were sick with the influenza, so that appellant waited until January 8, 1919, after hearing that respondent's family had recovered or were recovering from illness, before he attempted to have said execution enforced. That on said last-named date the appellant went, with Thad Evans, the constable of that township, to the premises aforesaid, to see whether respondent and her husband had vacated the same; that Evans took with hira the execution aforesaid. When they arrived at said land, they found respondent and her husband were preparing to move. That they had nearly all their goods loaded into the wagons. That respondent's husband was up and dressed, ready to drive away in a buggy then standing in the yard. On their arrival at the farm they found J. M. Perkins, the father of respondent's husband, out in the yard. The constable asked him where his son was, and the father told him he was in the house. The constable then went into the house to see W. C. Perkins, the husband of plaintiff. That appellant unhitched his horse and took it to the barn, about 40 or 50 yards from the house. When the constable went into the house, he found practically everything loaded for removal, so he said nothing to them about vacating the place, but did talk to respondent and her husband about the payment of the costs called for in the execution. While they were talking over this subject, respondent's father-in-law, J. M. Perkins, came into the house, and told his son not to pay any attention to the constable; that he did not owe anything. After some further quarrel between the constable and J. M. Perkins, they engaged in a fight or scuffle in the room where plaintiff's husband was sitting. There is some controversy as to how the fight actually commenced, but they clinched. Perkins got the constable on the floor, took his pistol away from him, ordered him out of the house, and, with the constable's pistol in his hand, marched him out of the door, on to the porch, and then ordered him off the place. As the constable stepped off the porch, he got another pistol out of his pocket and shot J. M. Perkins, but did not kill or seriously wound him. During all this trouble in the house appellant was some distance away at the barn, and knew nothing about what had occurred, until Rome Clark, who was helping to move plaintiff and family, came to the barn and told defendant that J. M. Perkins had the constable down on the floor of the house, was liable to hurt him, and advised appellant to go up and separate them. That appellant said he did not want to do it, and asked Clark to do so, and the latter declined. That appellant and Clark both started towards the house, and when they got near the house Evans came out first, and Perkins was behind him with a gun in his hand following him. That Perkins was the only one that said anything. That when Evans came off the porch he turned and shot Perkins. That appellant, at this stage of the proceeding, while 30 or 40 feet away, called to the constable to shoot him again, but, instead of doing so, he told Perkins to drop his gun, and the latter did so.

J. M. Perkins testified that the constable was talking to his son about the costs, in an ordinary tone of voice, and in a gentlemanly way, when he told the son not to pay, any attention to the constable; that the barn was at least 40 or 50 yards from the house. Witness testified: That, when he heard the talk about the costs, he said to his son:

"Here, Billy, you are getting shook to pieces. You are getting all tore up. Don't pay no attention to this fellow."

That he also told him:

"You don't owe them anything."

He further testified:

"After I throwed him down and took the gun away from him, I told Mr. Evans not to say anything more to my son. After I took the gun away from him, I said, `Get away from here and let my son alone.'" (Italics ours.)

This witness also testified that, after he took the gun away from the constable, he followed the latter out on the porch, and the constable got off the porch; that he still had the constable's gun in his hand, ordered him to leave the place, and then the constable shot him. He said appellant was about 40 feet away under the pump when he told the constable to shoot witness.

There is nothing in the record tending to show that appellant had any reason to anticipate any difficulty until he was told of the trouble by Clark. The evidence is undisputed that after the difficulty respondent's husband voluntarily hitched his horse to the buggy, got into the latter, without any suggestion from any one, and, of his own accord, drove a quarter of a mile to Gilmore's, where his wife and children had gone, and stayed there all night.

The shooting occurred on January 8, 1919, and plaintiff's husband did not die until April 8, 1919.

In order to avoid repetition, we will consider the remaining facts, the instructions and rulings of the court, as far as necessary, in the opinion.

Nine of the jurors returned a verdict in favor of respondent op the first count of petition for $10,000 as actual damages and $10,000 as punitive damages, but made no finding as to the second count of petition. Judgment was entered accordingly. Defendant, in due time, filed motions for a new trial and in arrest of judgment. Both motions were overruled, and the cause duly appealed by him to this court.

W. M. Bowker, of Nevada, Mo., John S. Haymes, of Buffalo, L. T. Wilson, of Prior, Okl., and G. P. Hays, of Ozark, for appellant.

Moore, Barrett & Moore, of Ozark, L. Cunningham, of Bolitvar, and Hamlin & Hamlin and C. W. Hamlin, all of Springfield, for respondent.

RAILEY, C. (after stating the facts as above).

1. This case seems to have been tried by the...