City of Festus v. Kausler

• Decision Date: 23 April 1937
• Docket Number: No. 5643.,5643.
• Citation: 105 S.W.2d 646
• Parties: CITY OF FESTUS ex rel. and to Use of STOLZER et al. v. KAUSLER et al.
• Court: Missouri Court of Appeals

105 S.W.2d 646

CITY OF FESTUS ex rel. and to Use of STOLZER et al.

v.

KAUSLER et al.

No. 5643.

Springfield Court of Appeals. Missouri.

April 23, 1937.

Rehearing Denied May 28, 1937.

Appeal from Circuit Court, Iron County; E. M. Dearing, Judge.

"Not to be published in State Reports."

Suit by the City of Festus, at the relation and to the use of Nicholas Stolzer, administrator of the estate of Herman Stolzer, deceased, and others, against John Henry Kausler, Jr., and others. Judgment for plaintiffs, and defendants appeal.

Affirmed.

Edgar & Mathes, of De Soto, and Edward T. Eversole, of Festus, for appellants.

Charles W. Green, of De Soto, Edgar & Banta, of Ironton, and R. E. Kleinschmidt, of Hillsboro, for respondents.

ALLEN, Presiding Judge.

This suit is based on the bond executed by defendant John Kausler, Jr., as marshal of the City of Festus, and was brought in the name of the City of Festus, at the relation and to the use of relators, Nicholas Stolzer, administrator of the estate of Herman Stolzer, deceased, Nicholas Stolzer and Annie Stolzer, his wife. The suit was originally filed in Jefferson county, but was tried in Iron county, on change of venue. At the first trial there was a judgment for plaintiff in the sum of $1,200. The court sustained the defendant's motion for a new trial, on the sole ground that error was committed in not permitting defendant Kausler an opportunity to show that he was a deputy sheriff at the time he shot and killed the deceased. Plaintiff appealed from said order granting a new trial, and this court affirmed the order, granting the defendant a new trial, and remanded the case for a retrial, in order to permit the defendant Kausler to submit to the jury the defense that he was then acting as a deputy sheriff of Jefferson county at the time of the shooting, and was then in possession of a state warrant for the arrest of the deceased, which case is reported in 77 S.W.(2d) 197, under the style of City of Festus ex rel. Stolzer v. Kausler et al. On a retrial in said Iron county circuit court, the defendants offered evidence tending to show that said Kausler had been appointed a deputy sheriff and that a state warrant for the arrest of the deceased had been issued and delivered to Kausler on the day of the killing. The jury returned a verdict in favor of the plaintiffs in the sum of $2,000, the full amount of the bond. The defendants filed their motion for new trial, which was overruled, and defendants appealed to this court.

This court wrote the opinion upon the case in the second appeal. A motion for rehearing was filed, which was sustained, the case was reargued, and is again before us for determination.

The petition in this cause alleged the election of Kausler as city marshal, the execution of the bond by all the defendants, and that the defendant Kausler breached said bond by unlawfully killing the deceased while attempting to arrest him, without a warrant, for an alleged violation of the ordinances of said city, committed in the presence of said officer. At the first trial the defendants all filed a joint answer, while in the second trial they filed separate amended answers, one by the principal, Kausler, and the other by the three sureties, the former alleging that said Kausler was acting as deputy sheriff and not as such marshal, in attempting to make said arrest, and also that the killing was in necessary self-defense; the latter alleging merely the defense that Kausler was acting as deputy sheriff.

Plaintiff filed a reply to each of said answers, alleging that defendant Kausler, principal in the bond, had appeared at a preliminary hearing before a justice of the peace in a matter involving the killing of said deceased, at a time when the statute of limitations had not run against either the sheriff's bond or the marshal's bond, and had voluntarily testified under oath, as a witness in his own behalf, that he had killed the deceased while acting as city marshal; that the time had then expired for the filing of suit by relators upon the sheriff's bond; and that defendants were therefore estopped to deny that said appellant, Kausler, was acting as such marshal at the time of the killing of the deceased.

The execution of the bond by the principal and all the sureties was admitted by the appellants, and it was also admitted that Kausler, at the time of the killing of the deceased, was the duly elected, qualified, and acting marshal of the City of Festus. There was also proof that he was at least a de facto deputy sheriff at the time. He had served some subpœnas as deputy sheriff, but the evidence did not show that he had ever made an arrest or attempted to serve any other warrant as such deputy sheriff. There was also evidence that some sort of a warrant for the arrest of the deceased, on a misdemeanor charge, had been issued by a justice of the peace about the time of the alleged killing. The defendant Kausler testified that he had the warrant at the time of the arrest, but all of the other evidence was to the effect that the warrant was not procured by Kausler until after he had shot the deceased. There was considerable evidence on both sides to the effect that the defendant Kausler, as marshal of Festus, had had some difficulties with the deceased, Herman Stolzer, and his brother, Millard Stolzer, a short time before the occasion in question; some of the evidence being to the effect that the boys had said they were going to take Kausler's badge away from him, while other testimony being to the effect that Kausler had said he "had a gun to use on the Stolzer boys."

The testimony further showed that on the 14th day of November, 1931, one Luke Smith and the Stolzer boys had a fist fight near Main street, in the City of Festus, and that Smith wanted to have the Stolzer boys arrested, and went to defendant Kausler, because he was the marshal, and found the defendant Kausler on said Main street and requested him to arrest the Stolzer boys. According to respondents' evidence, Smith went to the office of the justice of the peace to get a warrant, but before the warrant was ever procured Kausler found the Stolzer boys and in the resulting trouble, shot the deceased, and then returned to the office of the justice of the peace and got the warrant, and went back down the street, waving it in his hands. According to respondents' evidence, the deceased was running at the time he was shot, and neither he nor his brother then made any physical resistance to the attempted arrest, other than to demand a showing of the warrant. According to the testimony of appellant Kausler, he had the warrant when he started to make the arrest, and the deceased and his brother called him vile names, assaulted him, and knocked him down before he drew his pistol. According to the evidence on both sides, there was considerable quarreling and argument between Kausler and the Stolzer boys just before the shooting, as to whether Kausler had a right to arrest them without a warrant. The difficulty with Luke Smith, and the difficulty with the defendant Kausler, all occurred within the city limits of Festus. The deceased died two or three days later, from the effects of the shooting, and the defendant Kausler never served said warrant, but the same was served on Millard Stolzer, by the constable of the township, on the 20th day of November, 1931.

The bond sued upon was introduced in evidence, as were also certified copies of certain ordinances of the City of Festus, in force and effect at the time of the alleged breach of the bond, showing that it was a violation of the ordinances and the laws of said city for any one to disturb the peace of or assault another within the...