Gray v. McDonald

• Decision Date: 09 January 1888
• Parties: NANCY A. GRAY, Respondent, v. WILLIAM G. MCDONALD, Appellant.
• Court: Kansas Court of Appeals

28 Mo.App. 477

NANCY A. GRAY, Respondent, v. WILLIAM G. MCDONALD, Appellant.

Court of Appeals of Missouri, Kansas City.

January 9, 1888

APPEAL from Livingston Circuit Court, HON. JAMES M. DAVIS, Judge.

Reversed and remanded.

Motion for rehearing overruled.

Statement of case.

This is an action for damages resulting from the killing of plaintiff's husband. The plaintiff is the widow of John Q. Gray. The deceased and defendant were neighbors, living near the town of Lisbonville, in Ray county, between whom there does not appear to have been other feeling than that of friendship and neighborship, prior to the trouble hereinafter mentioned. They were both men of good character, and were good citizens. On the sixth day of July, 1885, Gray was in the town of Lisbonville in the forenoon. He went home to dinner, and, having forgotten some errand in town, returned thither in the afternoon. The defendant's son, William W McDonald, aged about twenty years, was also in town that day. He was in his shirt-sleeves. Whether he saw Gray that day prior to the altercation between them, does not affirmatively appear. The evidence shows, however, that that afternoon young McDonald borrowed a pistol of a merchant in said town. Late in the afternoon, about five o'clock, perhaps, the defendant and a neighbor rode into town. After dismounting from his horse, the defendant and other persons were seated on the porch of Bishop's store, engaged in conversation of an ordinary character, when young McDonald also came up, taking a seat on the steps of the porch. In a short time Gray came out of a mill, a short distance from where the said parties were sitting on the porch. He had on his shoulder a sack of meal. In going to the store of one Langford, Gray passed in about sixty feet of where the McDonald party were. It is inferable from the evidence that some time prior to this, a search warrant had been taken out to search the premises of McDonald for some missing boots; and that young McDonald had heard that Gray promoted this search, as an imputation upon him. On the appearance of Gray, coming from the mill, young McDonald said, there comes Gray, and he would " tackle him" about those boots. As Gray passed young McDonald hailed him, with a coarse epithet, stating that now was the time to settle, or that he could " lick" him, or something of a like import. The evidence tended to show that defendant remonstrated with his son, and told him to let Gray alone. After Gray reached the sidewalk opposite Langford's store, he stopped, and saluted the defendant, saying: " How are you, Mr. McDonald." Then laying down his sack, he turned to young McDonald, and asked him what he meant by using such language toward him? The answer, in substance, was: " I mean just what I say," and, perhaps, repeating the epithet, said, " I can lick you." Gray said: " If you want anything of me, come over here and you can get it." Young McDonald, at this time, was standing not far from his position where he sat on the steps. Gray then advanced towards him, and picking up a rock, about the size of an ordinary fist, advanced towards young McDonald. As he advanced McDonald, jr., said: " Old man, you are walking into your grave," or some such words. When Gray had advanced to within about ten feet of him he hurled the stone at him. The evidence tends to show that young McDonald drew from his pants-pocket a pistol as Gray advanced with the stone. As the rock was hurled McDonald dodged down, and the rock passed over him. As he rose he fired two shots in rapid succession, each shot taking deadly effect in and about the chest of Gray. The evidence is conflicting as to whether defendant changed his position from the porch before the collision between Gray and his son. Defendant's evidence, however, showed, as does that of the plaintiff, that before the collision, defendant told his son to let Mr. Gray alone, etc. At all events just after the fatal shots were fired defendant was seen between the parties. Plaintiff's evidence tends to show that when defendant so came to the parties he struck Gray one or two blows with his fist back of the ear. While defendant's evidence tends to show that he did not leave his seat until at the moment of the collision, and that he ran between the parties to separate them, and did not strike Gray. Gray turned, and walked to Langford's store, stating that the McDonalds had acted cowardly, and he would see them again, or something to that effect, He then walked into the store, and died in a few minutes. The evidence further showed, that after the shooting defendant said that his son ought to have shot Gray, for using the rock on him. There was other evidence, of an unimportant character, and much of contradiction among the witnesses, and some impeachment of plaintiff's witnesses. But the foregoing are the substantial facts.

Among the instructions asked by defendant, and refused by the court, are the following:

" 10. Before the jury can find a verdict for the plaintiff in this case, they must be satisfied, by a preponderance of the testimony, that the defendant said or did something which caused his son to enter into said difficulty, or that he said or did something which caused his son to shoot Gray, or their finding must be for the defendant."

" 11. The court instructs the jury that it devolves upon the plaintiff to show to their satisfaction, by a preponderance of the testimony, that the defendant did some wrongful act which caused the killing of Gray, or their verdict must be for defendant."

" 12. The mere fact that the defendant was present at the difficulty and did not prevent the same, is not sufficient, but the plaintiff must show to their satisfaction, by a preponderance of the testimony, that the defendant said or did something which caused W. W. McDonald to engage in said difficulty, or said or did something which caused his son to shoot Gray, or their verdict must be for defendant."

" 13. The court instructs the jury that if they believe, from the evidence, that John Q. Gray voluntarily entered into a difficulty with one W. W. McDonald, and that the defendant said or did nothing which caused the said W. W. McDonald to engage therein, and that during said difficulty the said W. W. McDonald shot said Gray, and that the defendant said or did nothing which caused said shooting, then the verdict must be for defendant."

" 16. Although the jury may believe that the defendant was present at the difficulty between his son and Gray, and did not interfere to prevent said difficulty, until his son had shot said Gray, and although the jury may believe that said defendant approved the killing of said Gray by his son, yet they must find for defendant unless they further prove that said defendant knew that his son was armed and intended to kill said Gray, and aided and abetted his son in said killing, with the intention that his son should kill said Gray."

" 19. Although the jury may believe that the defendant was present and interfered in the difficulty between his son and John Q. Gray, yet, unless they further believe that such interference on the part of defendant was for the purpose of aiding and abetting his son in killing the said John Q. Gray, and that he did aid and abet his son in said killing, they will find for defendant."

Among those given for the plaintiff are the following:

" 4. If the jury believe, from the evidence in this case, that the son of the defendant, on the sixth day of July, 1885, at Lisbonville, Ray county, Missouri, being then and there armed with a loaded revolver, without provocation or excuse, sought for, provoked, and brought on a difficulty with the husband of plaintiff and willingly entered into such difficulty, and during the progress of the affray he shot and killed her husband, and if the jury further believe that defendant was present during the whole of the difficulty, and understood what had transpired between his son and plaintiff's husband, and that defendant by word, act, or deed encouraged his son to enter into the difficulty and shoot Gray, or if they believe that defendant being so present and understanding what had taken place between his son and Gray, and knowing that his son had voluntarily provoked, brought on, and entered into such difficulty, undertook to aid or assist his son in his assault on and difficulty with Gray, and that said difficulty ended in Gray's death from wounds inflicted therein; then the finding of the jury must be for plaintiff."

It is not deemed necessary to present here all the instructions given and refused, as those above named present the important questions for determination, except those sufficiently noted in the opinion.

The jury returned a verdict for the plaintiff, assessing her damages at fifteen hundred dollars. Defendant has appealed.

C. T. GARNER & SON, J. L. FARRIS, J. A. CROSS, F. SHEETS, for the appellant.

I. It is insisted that no act or conduct of appellant was the cause of the death of the deceased Gray; that the death of deceased was caused by his own acts and conduct, and the pistol shot fired by W. W. McDonald; that appellant, by no word or act of his, brought on the difficulty, and that he did not participate therein; had no knowledge of his son having a pistol; that the advance of deceased in a threatening manner with the rock in his hand and finally throwing the rock at W W. McDonald was the cause of the fatal shots. Appellant advised his son to have no difficulty with deceased. It is denied that appellant in any manner aided, abetted, or encouraged his son, W. W. McDonald, and the evidence in the cause fails to prove that appellant did aid, abet, or encourage his son in any way or manner in the difficulty. If, as respondent alleges, he struck the deceased with his...