Atchison v. Procise

• Decision Date: 27 January 1930
• Docket Number: No. 16736.,16736.
• Parties: ATCHISON v. PROCISE.
• Court: Missouri Court of Appeals

24 S.W.2d 187

ATCHISON v. PROCISE.

No. 16736.

Kansas City Court of Appeals. Missouri.

January 27, 1930.

Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.

Action by John Lewis Atchison, a minor, by A. W. Atchison, his next friend, against R. A. Procise. Judgment for plaintiff, and defendant appeals. Affirmed.

C. A. Calvird, Jr., and Poague & Son, all of Clinton, for appellant.

L. E. Crook, of Osceola, and Hargus & Johnson, of Kansas City, for respondent.

BOYER, C.

Action for damages for negligent wounding by the use of a shotgun. The petition states that on February 21, 1926, at the city of Brownington in Henry county, Mo., the defendant negligently made an assault upon the plaintiff by shooting him with a gun loaded with powder and leaden balls; that nine of said balls struck plaintiff in the side and back, causing severe wounds; that by reason of the injury, plaintiff was required to spend a large sum of money for doctor bills, nursing, and medicine; and that through life plaintiff will continue to suffer great pain and mental anguish, and prays judgment for $2,500.

The answer was a general denial, and a further plea that whatever injury was sustained by plaintiff and inflicted by defendant was in the necessary defense of defendant's home; that on many occasions prior to the date in question, various persons, at the time unknown to defendant, had made attacks upon his home by throwing rocks upon it; that said attacks greatly impaired the security and enjoyment of defendant's home; and that on the night in question, "defendant having been informed that certain parties had rocked the Baptist Church in Brownington and later seeing a gathering of men and boys across the street from his home, in the night-time, anticipated that he might be rocked as he had frequently been and remained up to watch; that thereafter an automobile passed his home, went up the street a distance, turned around and returned and as the same passed his dwelling rocks were thrown upon and against his house; that defendant, desiring to know who the parties were who were attacking his dwelling fired a shot at the fleeing automobile with the intention of marking the same that he might learn the owner thereof and thereby ascertain the identity of the persons attacking his dwelling; that any injuries which plaintiff may have received were caused by the shot fired as above set forth and defendant specifically denies that he made an assault on the plaintiff, but acted only in defense of his dwelling house."

The evidence on behalf of plaintiff tended to show: That on the evening of February 21, 1926, he went to the village of Brownington about 8 o'clock, and after stopping at a restaurant for a short time, he and another boy went in the direction of a church, met a couple of girls, escorted them home, and in the course of a half hour or longer returned to the restaurant where he remained approximately 30 minutes reading the newspaper. At about 9 o'clock he and some other boys, who lived in the country and in the same direction from the village, started home together. They were accustomed to do this. They walked to the main street and proceeded on the west side thereof in the direction of their homes. They were traveling north. Plaintiff was some distance in advance of his companions and urging them to come on. When plaintiff reached a point in front of a doctor's office, he noticed a car coming towards him from the north at a high rate of speed. It attracted his attention, and he turned as the car passed to see if he could identify it as it went on up the street. At that moment a shot was fired. Plaintiff was struck in the back and arms and nine buckshot penetrated his body. Most of them were later removed, but some he still carried at the time of the trial. He fell on the sidewalk near Dr. Taylor's office. Dr. Taylor and others shortly appeared. Plaintiff was carried in the office and later removed to a hospital, where he remained 22 days. The expense incurred was $381 hospital bill and $75 for the doctors. At the end of the hospital period, plaintiff was still in bandages and was removed to his father's house. He was thereafter disabled for a long period of time and was still suffering disability at the time of the trial, which was the 10th day of December, 1928.

Plaintiff was corroborated by two boys who were accompanying him, in that they left the restaurant and were proceeding on their way home; that his companions stopped to talk to another boy, and that plaintiff was about 60 or 70 feet ahead of them, urging them to come on at the time he was shot. Plaintiff also testified that as the automobile approached and passed him, there was some one standing on the running board of the opposite side of the car apparently making motions with his arms in the direction of defendant's house. Plaintiff denied having any connection with assaults on defendant's house.

The defendant testified that he was 73 years of age; that he and his wife lived in their home on the corner of Main street where they operated the telephone exchange; that from August, 1925, to the date of the shooting, there had been made numerous attacks upon his dwelling house by persons who threw stones upon it, injuring and damaging the roof of the building to the extent that it was necessary to repair same, and put him in fear of injury; that he had been unable to ascertain who the parties were and had called upon the sheriff for aid; that on the evening of the shooting he had seen gathered across the street a crowd of men in the shadow of the blacksmith shop and became apprehensive of another attack upon his house; that it was then dark, and he did not recognize any of them; that he went inside his house and sat down by an open window to watch; some time thereafter an automobile passed up the street going north, ran about a block, stopped for a short period, turned around, and came back down the street by his house; that as it passed he could see them commence to make motions; he grabbed his shotgun, which was standing near by, and fired at the car; rocks were thrown upon his dwelling at that time; he shot at the car; that was the only thing he saw; he did not see the plaintiff. When asked the question, "Were you shooting, Mr. Procise, with the intention of hitting any one?" his answer was: "I had in mind gentlemen—of marking that car so as to locate the people that were giving me all this trouble. That is what I had in mind, I wanted to mark it and see if I couldn't find out who was giving me all this trouble."

The evidence shows that Dr. Taylor's office is south of the dwelling of the defendant and separated from it by about 46 or 47 feet of vacant ground; that at that time of night people used the sidewalk going to and fro; that it is one of the main thoroughfares in the village. Defendant could not state how long it was until he fired, but that he fired as quick as he could get hold of the gun; that he did not see anybody on the sidewalk and did not know that Atchison was within 20 miles of there; he looked out and saw nothing but the car; it was 5 minutes before he learned that any one was hurt; that he and Atchison were friends; that plaintiff had not caused him any trouble that he knew of; he was about 65 or 70 feet from where Atchison fell; that it was then "pretty tolerable dark."

Defendant's wife also testified to the numerous attacks upon their home, and on the night of the shooting that she was awakened from sleep by rocks striking the house; that she did not hear the shot; that one week before this time there had been an assault upon the house by a number of boys, and at that time she recognized the voice of plaintiff, as well as the voices of others in the crowd; that she did not give this information to her husband. One of her answers...