Besenecker v. Sale

• Decision Date: 06 January 1880
• Citation: 8 Mo.App. 211
• Parties: MARY BESENECKER ET AL., Respondents, v. JOSEPH E. SALE, Appellant.
• Court: Missouri Court of Appeals

8 Mo.App. 211

MARY BESENECKER ET AL., Respondents,

v.JOSEPH E. SALE, Appellant.

St. Louis Court of Appeals, Missouri.

Jan. 6, 1880.

1. In an action for damages for the killing of the plaintiff's husband, an instruction based upon the hypothesis of justifiable homicide should not be given where there is no evidence of circumstances which would warrant the defendant in believing that the deceased was about to do him great bodily harm, though the deceased, being unarmed, first struck the defendant.

2. In such an action, where the provocation is inadequate to call for the use of a deadly weapon, it cannot be said to be an efficient cause of the injury, and does not make such a case of contributory wrong as will defeat a recovery.

3. The doctrine that he who seeks and brings on an affray cannot avail himself of the plea of self-defence, has no application in a case like the present--a civil action for damages by a representative of the deceased.

4. In such an action it is not error to refuse to instruct that the jury, in assessing damages, must not take into consideration the mental suffering of the plaintiff caused by the death of her husband.

APPEAL from the St. Louis Circuit Court.

Affirmed.

JEFF. CHANDLER, for the appellant: A homicide may be excusable though not justifiable; when excusable, no action will lie for damages by the representative of the deceased.--Wag. Stats. 446, sect. 5; Morgan v. Durfee, 69 Mo. 469. If the injury to the deceased was brought upon him by his own wrong, there can be no recovery in this case.--Broom's Leg. Max. 204; Cooley on Torts, 44; The State v. Linney, 52 Mo. 40; The State v. Underwood, 57 Mo. 40; The State v. Hudson, 59 Mo. 135; The State v. Brown, 64 Mo. 367; The State v. Christian, 66 Mo. 138. Damages for injury to the feelings are not allowable.-- Blake v. Railroad Co., 83 Eng. Com. Law, --. And the jury should be so instructed.-- Chicago v. Shatton, 75 Ill. 468. The measure of damages in such cases is the reasonable expectation of pecuniary advantages from the continuance of the life of the deceased.-- Pym v. Railroad Co., 116 Eng. Com. Law, 396; Franklin v. Railroad Co., 3 Hurl. & N. 211; Railroad Co. v. Butler, 57 Pa. St. 335; 26 Ill. 400; 24 Md. 271. The burden is not on the defendant to show that the killing was not wrongful.-- The People v. Stokes, 53 N. Y. 164; The State v. Patterson, 45 Vt. 308.

GOTTSCHALK, for the respondent, cited: White v. Maxey, 64 Mo. 552.

HAYDEN, J., delivered the opinion of the court.

This is an action for recovery of damages ensuing from the act of the defendant in killing one Buckholz, former husband of the plaintiff, who is now Mary Besenecker. The defendant and Buckholz had an altercation, which resulted in the defendant's stabbing Buckholz with a knife in the region of the heart. Buckholz afterwards became well enough to go out, and, prosecuting the defendant criminally, came to St. Louis to attend the trial. After getting down from his wagon and walking a short distance, he fell dead in the street. It appeared, on the autopsy, that the pericardium, or membraneous covering of the heart, had been wounded as by some sharp instrument, and the testimony tended to show that the wound had produced pericarditis, which, impeding the action of the heart, caused the death.

The answer set up that the defendant was repelling the attack of Buckholz, and acted only in self-defence. There was a verdict for plaintiffs for $600. It is complained that the instructions given were erroneous. But those upon the main issue were, if anything, too favorable for the defendant. The present is a civil damage case, and no good reason exists why trial courts, in cases of this kind, should hesitate, on account of the homicide, to apply the ordinary tests by which it is determined whether there is any evidence to support the instructions. If any mistake was here committed, it would appear that it was, as in White v. Maxey, 64 Mo. 552, in assuming that there was evidence tending to support instructions based upon the hypothesis that the act of the defendant was justifiable, and therefore not wrongful. There was a direct conflict in the evidence; but, taking that most favorable to the defendant, it may be doubted whether there was any which tended to prove that the defendant, in stabbing Buckholz, acted in self-defence, or had reasonable cause to apprehend that his (the defendant's) life was in danger, or that there was immediate danger of the accomplishment of any design on the part of Buckholz to do the defendant some great bodily harm. It is true that the defendant's evidence tended to prove that Buckholz provoked the difficulty and struck the first blow; but he had no weapon. He used only his hand or fist, and, for aught that appears, the defendant might have completely repelled the attack in the same way. It is true that the deceased called for his gun; but these were mere words. There is nothing to show that any gun was at hand, and from the situation of the parties in the open road, there would have been ample opportunity for the defendant to have seen any one approaching with a gun or other weapon. If it was under these circumstances, and when refusing to retreat, as he might have done, that the defendant stabbed Buckholz with a knife in the region of the heart, then there was no foundation in the evidence for giving the instructions asked by the defendant, even if they had contained correct propositions of law. As suggested above, the court below went very far, considering the evidence, in giving the instruction, to the effect that if the jury found from the evidence that Buckholz assaulted the defendant in such a manner and under such circumstances as gave the defendant reasonable cause to apprehend that his life was in danger, or that Buckholz designed to do him some great bodily injury, and defendant so believed, and at...