Brinkman v. Gottenstroeter

• Decision Date: 06 February 1911
• Citation: 134 S.W. 584,153 Mo. App. 351
• Parties: BRINKMAN v. GOTTENSTROETER.
• Court: Missouri Court of Appeals

134 S.W. 584

153 Mo. A. 351

BRINKMAN v. GOTTENSTROETER.

Springfield Court of Appeals. Missouri.

February 6, 1911.

1. DEATH (§ 103)—ACTION FOR WRONGFUL DEATH—JURY QUESTION.

Where a defendant sued for wrongful death admitted the killing, but justified upon grounds of self-defense, the sufficiency of his evidence to sustain that contention was for the jury.

2. TRIAL (§ 29)—REMARKS BY JUDGE.

Where the court improperly excluded testimony impeaching a witness, by showing that his reputation for truth and veracity was bad, but later reversed his ruling, saying that he had been mistaken and that the evidence was admissible, and that the way the impeaching witness acquired his knowledge was a question for the jury, there was nothing improper in the remark, as it simply stated that the evidence, being competent, should be weighed by the jury.

3. DEATH (§ 69) — DAMAGES — MINOR CHILDREN.

In an action by a wife for damages for wrongfully killing her husband, the jury may consider that the deceased left minor children for her to support.

4. TRIAL (§ 131) — PRESENTATION OF GROUNDS — ARGUMENT OF COUNSEL — SPECIFIC OBJECTIONS.

Where an argument is proper, if directed to the question of damages, but otherwise might tend to inflame the jury, a general objection to it as improper is not sufficient to make a ruling which permitted it erroneous; but the opposing party should request the court to limit the scope of the argument.

5. TRIAL (§ 106) — APPEAL AND ERROR (§ 972) — ARGUMENT OF COUNSEL — DISCRETION OF TRIAL COURT — REVIEW.

The propriety of the arguments and conduct of counsel rests in the discretion of the trial court, and will not be reviewed save when such discretion is abused.

6. TRIAL (§ 252) — INSTRUCTION — APPLICABILITY TO EVIDENCE.

Where there is no evidence to support a phase of a case, the trial court properly ignores it in the instructions.

Appeal from Circuit Court, Franklin County; R. S. Ryers, Judge.

Action by August Brinkman against F. W. Gottenstroeter. From a judgment for plaintiff, defendant appeals. Affirmed.

Jesse H. Schaper and John W. Booth, for appellant. J. C. Kiskaddon, R. L. Shackelford and A. H. Kiskaddon, for respondent.

GRAY, J.

This is an action by the widow of August F. Brinkman against the defendant, to recover damages for the death of her husband. The petition alleged that the defendant, on the 9th day of March, 1908, unlawfully and wrongfully shot and killed the plaintiff's husband, to her damage in the sum of $10,000. The answer admitted defendant shot and killed the deceased, but alleged affirmatively that the act was done in self-defense. The cause was tried during the July term, 1908, of the circuit court of said county, and the jury returned a verdict in favor of plaintiff in the sum of $5,400. The defendant appealed to the Supreme Court, and that court transferred the cause to the St. Louis Court of Appeals, and the St. Louis court transferred the cause to this court. Both parties have appeared in this court, and no question of jurisdiction is involved.

The defendant contends that the verdict is not sustained by any substantial evidence. He admitted that he killed plaintiff's husband, and justified on the ground of self-defense. Whether his evidence was sufficient to sustain his plea of justification was for the jury. Morgan v. Mulhall, 214 Mo., loc. cit. 459, 114 S. W. 4; Pierce Loan Co. v. Killian, 132 S. W. 280; Orscheln v. Scott, 90 Mo. App. 353; State v. Evans, 124 Mo. 397, 28 S. W. 8; Seehorn v. Bank, 148 Mo. 256, 49 S. W. 886.

One Edw. Kunelmeyer gave important testimony in behalf of plaintiff....