Chism v. Cowan

• Decision Date: 11 September 1967
• Docket Number: No. 52184,No. 1,52184,1
• Citation: 425 S.W.2d 942
• Parties: James CHISM, Respondent, v. W. O. COWAN, Appellant
• Court: Missouri Supreme Court

Page 942

425 S.W.2d 942

James CHISM, Respondent, v. W. O. COWAN, Appellant.

No. 52184.

Supreme Court of Missouri, Division No. 1.

Sept. 11, 1967.

Motion for Rehearing or to Transfer to Court En Banc Denied

Oct. 9, 1967.

John M. Belisle and Morran D. Harris, Osceloa, for appellant.

Foust, Moudy & Jacobson, by Max Foust and Duke W. Ponick, Jr., Kansas City, Mo. Edward J. Murphy, Butler, for respondent.

HIGGINS, Commissioner.

Action for damages for assault and battery resulting in verdict and judgment for plaintiff for $50,000 actual and $20,000 punitive damages.

Plaintiff's first amended petition charged that defendant 'without just cause or provocation, wilfully, wrongfully, and unlawfully assaulted the person of the plaintiff with a deadly weapon, by then and there shooting and wounding plaintiff from ambush by means of an automatic shotgun.' Defendant denied the petition and pleaded affirmative defenses that the shooting was an accident and that defendant used only that force which was reasonable and necessary in the accomplishment of an arrest of plaintiff for an alleged misdemeanor.

The incidents giving rise to this action occurred Sunday, June 7, 1964, on the east side of a pond or lake on a farm owned by defendant in Caplinger Mills, Cedar County, Missouri. Plaintiff and his companion, John Young, parked their car at the Sac River bridge, proceeded on foot through defendant's field and, by their estimates, arrived at the lake with rods, reels, and bait about 7:15 p.m. 'It was still daylight,' and the weather 'was clear.' According to defendant, 'it was extremely dark, and there was a fog came down over that lake from the south.' He first saw a 'man's form in the dark standing there' from his point on the west side of a tree 'approximately 300 feet back from the lake' where he had gone to watch for persons who might come to fish his lake. 'I waited a few minutes to see what was going on, and that form went out of sight and sat down, and in a few minutes I saw two forms stand up, and they were about 10 feet apart. From the distance, what I could see in the dark, I could just see a silhouette, so I started moving down in a sort of a little ravine, more straight west than to the northwest, and I moved down approximately a third of that distance across there.'

When plaintiff and John Young arrived at the east side of the lake, 'we set down and started to bait up, and we no sooner got, we just was baiting our lines, getting to throw out, when we heard a shot * * *.' Plaintiff was then to the right, or north, and Young was to the left, or south, both facing west toward the pond. When plaintiff heard the shot, 'John screamed like he was hurt, * * * and then I seen him slump forward, * * * sort of toward the lake, and then he kind of turned his back to the lake as he fell.' A second shot then 'hit in the grass between us.' Plaintiff testified that no warning was given before defendant shot; defendant testified that before he shot he 'hollered at them 'i've got you, and don't you run.' And just as I said 'I've got you, and don't you run' the party on my left made a dive for the lake and I shot him. * * * It was a long distance, probably 200 feet, so I just peppered him real good. And about this time this other form disappeared.' This first shot struck John in the back of his head and shoulders.

Plaintiff stated that after the second shot, 'I put up my hands and hollered that we give up, and then I stepped, looked around to the northeast and I seen Dr. Cowan running toward us with a shotgun, and I hollered 'We give up, don't shoot.' And he was running at us hollering 'I've got you now, God damn you, I'm going to kill you.' And then I said 'Please don't shoot,' and he said 'Yeah, don't shoot.' He said 'Turn around, you son-of-a-bitch, I'm going to kill you. '' Plaintiff was walking toward defendant during this plea and they were about '10, 15 feet' apart at defendant's command, 'turn around.' 'Just as I turned around like that (to the left), why, I no sooner got turned around than he shot me.' Plaintiff did not threaten or attempt to run away from defendant.

John Young saw plaintiff as 'he got up and put his hands up and walked toward him (Dr. Cowan).' He heard plaintiff say he gave up, his repeated pleas not to shoot him, and heard defendant state his intention to kill plaintiff. 'He (defendant) kept repeating that he caught us and he was going to kill us, he was going to teach us not to fish in there.' Young did not see the shot that hit plaintiff but heard the third shot when plaintiff and defendant were about 10 feet apart and saw plaintiff as 'he slumped up and bent over and fell on his face.' Young then got up and ran to the south. 'He shot at me again. * * * I fell down.' He was then about 30 feet from defendant. He got up and ran again, and a fifth shot was fired when he was approximately 100 yards from defendant. '* * * on the last shot one (pellet) hit me in the leg.'

Defendant's version of these events was that after he fired the first shot the 'form' on the right (plaintiff) went north. He fired the second of the five shots in that direction and then plaintiff came up from the water and said he gave up. He left plaintiff standing there and moved southeasterly and south toward John Young. He heard Young coming out of the water but did not see him. 'I pulled the gun up to my hip and, in a southwesterly direction, behind him, I fired into the lake. * * * The minute I shot I could tell it didn't hit the water, it hit something, and in the flash of the gun I realized somebody had been hit.' He judged this shot to have been from 75 feet away from plaintiff. He shot the fifth time into the air.

Doctor Cowan went from the scene of the shooting to a farmhouse a quarter mile away and called Alfred Oldham, Sheriff of Cedar County. 'I told him that two men had been shot down at my lake, and one of them had been shot and I was afraid he was seriously hurt.' Sheriff Oldham testified that defendant said 'I have killed one boy and I have wounded another.' When the sheriff met defendant at the road near the lake sometime later, defendant repeated, 'I've killed a boy down here and I have wounded another one. * * * They're going to stop stealing my fish.'

Deputy Sheriff Charles Lilly also was present when this meeting took place. John Young then appeared upon being assured that no more shots would be fired. According to Lilly, Young asked defendant why he shot Jim (plaintiff) and him when they were trying to give up. The defendant's reply was that he had warned them to stay out and said he would kill anyone who came on there.

In addition to previously stated testimony from defendant, he testified that he built the lake on this farm which had been in his family for many years. He stocked the lake with fish and began experiencing difficulties with people fishing without his permission. He and Mrs. Cowan would travel three or four times a week from their home in Greenfield, forty miles away, to protect their property. In the evening of June 7, 1964, he caught two men fishing who ran, one of whom he later learned was John Young. On the evening in question Mrs. Cowan left in the car and defendant stayed at the farm. According to Dr. and Mrs. Cowan there were a number of 'No Trespassing' type signs on the premises.

The assemblage at the road following the shooting and call to Sheriff Oldham included an ambulance driver and attendant and the entire group undertook to locate plaintiff, found lying near the pond. He was placed in the ambulance, taken to Cedar County Memorial Hospital in Eldorado Springs, Missouri, where he was admitted in critical condition, examined, and treated surgically by Dr. William C. Sunderwirth.

Doctor Sunderwirth found a badly mutilated area or hole in plaintiff's right flank measuring three inches across. Plaintiff had lost nearly half his normal blood volume and had a gas pattern indicative of developing obstruction which prompted exploratory surgery. The surgery revealed severe internal bleeding and marked concentration of shot in plaintiff's rib cage and liver. There was a hole in the liver in which Dr. Sunderwirth dropped three fingers without reaching the bottom. He put a piece of gelfoam 4 2 and two other pieces half that size into the liver opening to control the bleeding. Drains were put in plaintiff's side and liver. Shock followed the surgery and plaintiff was then transported to additional medical facilities at Burge Protestant Hospital in Springfield, Missouri. He remained in critical condition until June 11, 1964.

While at Burge Hospital for eighteen days, plaintiff was attended by Dr. James W. Clawson. He received blood transfusions and fluids to restore his normal blood volume. On June 15 Dr. Clawson removed stitches and debrided necrotic tissue from the wound. Blood had to be withdrawn from the chest cavity by needle on June 16. Plaintiff returned to Cedar County Hospital upon release from Burge and recuperated there an additional six days. He was readmitted for two days February 22, 1965.

Prior to the shooting plaintiff, aged 27, life expectancy 42.32 years, was in good health with no liver or internal injuries or complaints. Dr. Sunderwirth was of the opinion that plaintiff had permanent disability referable to his damaged liver; that his life had been shortened by the shooting and injuries; and that he would have residual pain worsening as he aged. Dr. Clawson testified that damage to the muscles of plaintiff's back and laboratory tests indicative of liver damage were permanent disabilities resulting from the shooting. Dr. Nathan A. Masor examined plaintiff December 15, 1965. His X rays and liver function tests revealed concentration of shot in the liver and along the spine, functional damage to the liver and a problem with the excretory function of the liver. He attributed them and their permanency to the shooting. Dr. Masor also found a defect in the...