Baker v. Supreme Lodge Knights of Pythias

• Decision Date: 20 January 1913
• Docket Number: 15718
• Citation: 103 Miss. 374,60 So. 333
• Court: Mississippi Supreme Court
• Parties: BAKER v. SUPREME LODGE KNIGHTS OF PYTHIAS

60 So. 333

103 Miss. 374

BAKER v. SUPREME LODGE KNIGHTS OF PYTHIAS

No. 15718

Supreme Court of Mississippi

January 20, 1913

October, 1912

APPEAL from the circuit court of Panola county, HON. N. A. TAYLOR Judge.

Suit by Mrs. Lily Baker against the Supreme Lodge of the Knights of Pythias. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Shands & Montgomery, for appellant.

The only question before this court now is, was the trial court warranted in charging the jury as a matter of law upon the record made, that deceased's, Baker's, death was caused or superinduced in consequence of a duel, in which he was a participant?

We say not, because of the total absence in the evidence of the circumstances surrounding the combat in which Baker lost his life, of those peculiarities which distinguish a duel within the meaning of the criminal laws of the land and within the contemplation of the insurance contract here sued on, and a common fight or brawl. The word duel within the meaning of the criminal laws has a distinct, definite meaning. Every combat in which two persons participate is a duel in the sense that it is bilateral; but very few fights in which two persons engage, of which our criminal courts take cognizance are duels in a judicial sense. To constitute a duel there must be more than a fight in which two men engage; there must be "a combat with deadly weapons, fought between two or more persons, by previous agreement or upon a previous quarrel." Black's Law Dictionary, p. 399. "A duel is a combat with deadly weapons, fought according to the terms of a precedent agreement, and under certain agreed or prescribed rules, and has none of the elements of sudden heat and passion." 13 Current Law, p. 1374. "The word 'duel' as it appears in the present contract (being a policy of insurance similar to the one sued on) was used in its ordinary signification, and with the meaning which is ordinarily attached to the term; that is, a combat with deadly weapons between two persons by some prearrangement and understanding, and perhaps with some formality." Davis v. Modern Woodmen of America, 98 Mo. 713, 73 S.W. 923.

We quote elaborately from the definition of the word duel as it is used in the criminal laws, as found in the opinion of the court in the case of Ward v. Commonwealth, 116 S.W 786.

This was no duel. Duels are made of different stuff. The whole transaction differs in no way from a common, "ordinary vulgar fight and brawl that sprung up and was carried on under the influence of sudden heat and passion." There was no deliberation, no time for passion to subside and sober reason to return, no time for the intervention of friends, and no sort of formality and decorum which characterizes a duel. There was never any challenge on the part of Baker to fight a duel. Without a challenge to fight a duel and an acceptance thereof, there can be no duel.

There were no agreed or prescribed rules by which the encounter between Lester and Baker was to be conducted, and none were observed. There was nothing in the world but the drawing of pistols by two angry men, and a killing of the one by the other. Indeed if it could be contended that there was an agreement to fight a duel, the agreement was abandoned, the encounter was never conducted according to the agreement; but on the other hand Baker was actually killed before the time alleged to have been agreed upon, viz., when he should have gone to his cash drawer and secured his own pistol.

The learned trial judge should have charged the jury that the evidence did not warrant them in finding that Baker's death was caused or superinduced in consequence of a duel in which he was a participant. Ward v. Commonwealth (Ky.), 116 S.W. 786; Black's Law Dictionary p. 399; 13 Current Law, p. 1374; Davis v. Modern Woodmen of America, 98 Mo. 713, 73 S.W. 923.

In no event was the trial court warranted under the evidence, in declaring as a matter of law that Baker's death was caused or superinduced in consequence of a duel in which he was a participant. In granting a peremptory instruction, the court assumes as true all testimony tending to establish the issue in favor of the losing party; if there was any evidence sufficient to warrant a verdict for the appellant on the trial of this case in the court below, in any view of which it might have been legally taken, a peremptory instruction in favor of appellee should not have been given, but the case should have been submitted to the jury with proper instructions. Railroad Co. v. Boehms, 70 Miss. 11; Holmes v. Simon, 71 Miss. 245; Tribette v. Railroad Co., 71 Miss. 212.

If there was any evidence supporting or tending to support the contention upon which the jury might have found for appellant on the trial below, the case should have been submitted to the jury. Lowenstein v. Powell, 68 Miss. 73.

A motion to exclude the evidence and instruct for defendant should be sustained only where a verdict for plaintiff, if one were rendered, would have to be set aside as unwarranted. Anderson v. Telephone Co., 86 Miss. 341.

The burden of proof was upon appellant, defendant below, to show that the death of Baker was due to such cause as relieved appellee from liability by the express terms of the policy. Tallis v. U. S. Mutual Acct. Assn., 58 A. S. R. 408; Smith v. Aetna Life Ins. Co., 91 A. S. R. 153; Anthony v. Acct. Assn., 44 A. S. R. 367; Cronkhite v. Travelers Ins. Co., 17 A. S. R. 184, and notes; Meadows v. Pac. Mut. Life Ins. Co., 50 A. S. R. 427 and notes.

It certainly will not be contended in this case by appellee that the evidence shows anything like a formal or premeditated duel--that Baker issued a formal challenge and that it was formally accepted by Lester.

It must be clear that Baker himself never intended the language made use of by him as a challenge to fight a duel, as his utterance was based upon a false premise, viz., that his pistol was in his cash drawer, when in fact his pistol was at the very moment on his person.

It is equally clear that Lester never understood and considered his language as a challenge to fight a duel, for he shot him down and killed him before he had gotten half way to his cash drawer. Certainly this is a question which should have been submitted to the jury under proper instructions. Indeed this is always a question for a jury.

"Whether the alleged challenge under all the circumstances of the case was intended as, or amounted to, a duel is always a question for the jury." 14 Cyc. 1116, par. F; Com. v. Hart, 6 J. J. Marsh (Ky.), 119; Com. v. Hooper, Thach. Cr. Cases (Mass.), 400; Norton's case, 3 City Hall Rec. (N. Y.) 90; Com. v. Pope, 3 Dana (Ky.), 418.

"Whether a challenge to fight in single combat with deadly weapons was intended, or whether it was the mere effusion of passion or folly, or the idle boast of a braggart, not intended at the time to lead to any result or to be understood by the other party to be a challenge to fight a duel, are questions which the jury must determine." Ivey v. State, 12 Ala. 276; State v. Strickland, 2 Nott. & M. (S. C.) 181; Com. v. Tibbs, 1 Dana (Ky.), 524.

"Whether the language used amounts to a challenge or not is a question to be determined by the jury upon a consideration of all the facts in the case." 10 Am. & Eng. Ency. of Law, p. 313, par. 2.

"The circumstances attending a fighting with pistols, and the intention of the parties, are questions of fact to be left to the jury." Herriott v. State, 1 McMull. L. (S. C.) 126.

"It is for the jury to decide whether or not there was a challenge." 2 Bishop's New Crim. Procedure, p. 133, par. 309.

"In a prosecution for challenging another to fight a duel if there is any doubt as to whether accused intended to challenge to fight a duel, the question is ordinarily for the jury." Ward v. Com. (Ky.), 116 S.W. 786.

L. F. Rainwater, for appellee.

No extended preliminaries are required in order to fight a duel. If it is a combat between two persons by agreement, it is a duel. There need be no formal challenge, nor formal acceptance. A mere agreement to fight is the only preliminary required. This court, in the case of Thomas v. State, 61 Miss. 60, defines what it takes to constitute a duel. In that case the defendant testified: "That as soon as he recognized the deceased, he drew his pistol from his hip pocket, placed it in the linen duster coat which he was wearing, rose from his seat, advanced towards the deceased until he was in a few feet of him, and then, halting behind a little and to the left of him, said, 'Now I am ready for you to shoot. '" Deceased instantly rose from his seat throwing his hand behind or to his side as he did so, and the defendant at once fired. The court on page 66 says: "I am ready for you to shoot", was a challenge to fight with deadly weapons, an impromptu duel.

There was much more preliminary conduct in the case at bar than in the one cited supra. Here there was a challenge by the deceased and an acceptance by the slayer, either in words or by implication as clearly demonstrated by the subsequent events, and the conduct of the parties at the time immediately following the challenge.

In South Carolina, under a statute on the subject of duelling, the supreme court held "that any agreement to fight with loaded pistols and an actual fighting in pursuance of it, is a duel." Herriott v. State, 1 McMullan, 126.

Mr Bishop in his admirable work on Criminal Law, after reviewing the decisions says: "On the whole, therefore, a duel may be defined to be fighting together, by two or more persons, on such mutual agreement as permits one to take the life of another in the encounter." 2 Bishop on Criminal Law (5 Ed.), ...