Conway v. Reed

• Decision Date: 31 October 1877
• Citation: 66 Mo. 346
• Parties: CONWAY, by next Friend, v. REED, by next Friend, Appellant.
• Court: Missouri Supreme Court

66 Mo. 346

CONWAY, by next Friend,

v.REED, by next Friend, Appellant.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Buchanan Circuit Court--HON. JOS. P. GRUBB, Judge.

This was an action for damages sustained by responddent in consequence of the alleged unlawful and wrongful shooting of him by the appellant, whereby the amputation of his left leg was rendered necessary, and other injuries were suffered by him. In addition to the denial of the allegations of the petition, the answer set up, as a special defense, that appellant and respondent, and other boys about their own age, twelve or thirteen years, were out playing together, having a gun, and that in the course of their talk and play, whilst the gun was in the hands of appellant, without any fault or negligence, or design on the part of appellant, the gun, without being aimed at or directed towards the respondent, accidentally went off and was discharged, and by accident alone shot respondent, from which he suffered and had to have his leg amputated. On the trial, evidence was offered by appellant tending to show that the shooting was purely accidental and unintentional, and, by respondent, that it was owing to the carelessness and negligence of appellant. The jury rendered a verdict in favor of respondent for one thousand dollars.

The first instruction given by the court at the instance of respondent, was as follows:

1. If the jury believe from the evidence that about the time charged in the petition the defendant shot the plaintiff in the leg with a shot gun, loaded with gunpowder and leaden shot, and which gun the defendant held in his hands, then, prima facie, the plaintiff is entitled to a verdict. And if the jury find for the plaintiff, they will assess his damages at such sum as they believe he has sustained, not exceeding ten thousand dollars.

The instructions asked by appellant, and which the court refused to give, are as follow:

1. That under the pleadings and evidence in this case, the plaintiff cannot recover.

3. Under the law and evidence in this case, the defendant, Reed, not only had the right to carry his gun along with him, but also had the right to carry it loaded; and if the jury believe from the evidence that Conway was shot, without any intention on the part of defendant to shoot him, then the burden of proof is on Conway to prove to the satisfaction of the jury, that such shooting resulted from the careless or negligent manner in which the defendant used said gun at the time.

6. That the defendant is charged in the petition to have been guilty of an unlawful and wrongful assault upon the person of plaintiff on or about the 11th day of April, 1874, and that plaintiff was injured thereby.

7. That every unlawful and wrongful assault upon the person of another includes some degree of malice or some intention, however slight, to do some injury to the person assaulted; and unless the jury believe from the evidence that the defendant was prompted by some degree of malice, or had some intention to injure plaintiff at the time charged in the petition, they will find for the defendant.

Allen H. Vories for appellant.

1. The court erred in admitting any evidence of the manner in which plaintiff was shot. The petition stated a case of unlawful, wrongful and willful assault with the gun. The evidence was of an unintentional, accidental shooting on the part of defendant, whilst he, plaintiff and other boys were playing with a gun; and the whole case was tried, and a recovery had upon the supposed careless and negligent manner of using the gun, all variant from plaintiff's petition. A party cannot state one cause of action and recover upon another. He must recover upon his petition, not on the answer of defendant. Merle v. Hascall, 10 Mo. 406; Jones v. Louderman, 39 Mo. 287; Dougherty v. Mathews, 35 Mo. 529; Murphy v. Wilson, 44 Mo. 313.

2. The first instruction of defendant ought to have been given. It was in the nature of a demurrer to the evidence, and should have been given, as the whole of the evidence varied from the allegations in the petition. And there was a total failure of proof. See Wag. Stat., 1058, § 1.

3. In the case of Morgan v. Cox, 22 Mo. 373, which was a cause of action based upon a charge of accidental shooting, the petition charged that the defendant negligently shot the plaintiff's slave. And the only question was as to the fact of negligence. It gave the defendant notice that he was to answer for his negligence. But in the present case, the petition is not based upon a careless or negligent shooting. The defense is, that the shooting was accidental, and without the fault or negligence of defendant. The replication denies this, thus tendering the issue that such shooting was not by accident. Hence the variance was not only material--and the evidence offered operated as a surprise to defendant--but the whole case, evidence and instructions, was tried, and verdict rendered upon the fact whether defendant used said gun carelessly or not.

4. The court erred in giving the plaintiff's first instruction. If the injury had been done intentionally, then, prima facie, defendant would have been liable; but if done unintentionally, through carelessness or negligence, then it would devolve upon plaintiff to show such negligence before defendant would be liable. Under the petition, the instruction would be proper; but under the evidence, the burden of proof is on the plaintiff to establish negligence.

B. F. Loan and Bennett Pike for respondent.

1. There was no variance between the evidence and the pleadings. The allegation that the injury was unlawfully and wrongfully committed, included a case of carelessness and negligence. An action lies against an infant to recover damages for an injury inflicted or caused by him, which is not the effect of an unavoidable accident. 3 Wend. 391, Bullock v. Babcock; Sikes v. Johnson, 16 Mass. 389; Morgan v. Cox, 22 Mo. 373; Vasse v. Smith, 6 Cranch 226; Campbell v. Stakes, 2 Wend. 137.

2. If the injury resulted from inevitable accident, no negligence or wrongful intent could be imputed to defendant; but if the injury was occasioned by the careless and negligent doing of an act lawful in itself, the law holds the person by whom it is inflicted liable to respond in damages to the sufferer. Defendant had a right to carry the gun loaded, but in the exercise of such a right he was required to use extraordinary care. Proof that the act was carelessly or negligently done, sustains the allegation that it was wrongfully and unlawfully done. 3 Wend. 391.

3. It is a rule of good pleading, under the code, that “every fact which the plaintiff must prove to enable him to maintain his suit, and which the defendant has a right to controvert in his answer, must be distinctly averred; and every such averment must be understood as meaning what it says, and consequently is one to be sustained by evidence which corresponds with its meaning.” The word assault, ex vi termini, means an unlawful act, and an act that causes injury through the negligence of the actor, is as unlawful as if intentionally done. It was unnecessary in this case to show, in order to sustain the allegation of an assault, that the injury was intentional. It was enough that it happened through the negligence of the defendant. Selwyn's N. P., by Wheaton--Assault and Battery, 19; 1 Chitty's Pld., pages 122, 127, 170; Bullock v. Babcock, 3 Wend. 391; 44 Mo. 313, Murphy v. Wilson.

HENRY, J.

An infant is liable for a tort in the same manner as an adult. Bullock v. Babcock, 3 Wendell 391; Campbell v. Stakes, 2 Wend. 138; Vasse v. Smith, 6 Cranch 230; Morgan v. Cox, 22 Mo. 374.

It is contended by appellant that, because the petition alleged that defendant unlawfully and wrongfully assaulted the plaintiff and shot him with a gun, evidence of a negligent or careless shooting would not sustain the averment in the petition; in other words, that the petition alleged one cause of action, and the evidence established another, if any. Bullock v. Babcock, supra, was an action of trespass for assault and battery. The defendant was a boy about 12 years of age, and the evidence showed a negligent shooting of plaintiff by defendant with an arrow from a bow, and it was held sufficient to entitle plaintiff to a judgment.

In Morgan v. Cox, defendant was an infant. The petition in that case alleged a negligent killing of plaintiff's slave by defendant, but there is no intimation in the opinion of the court that, if the petition had alleged, as in this case, that defendant unlawfully and wrongfully shot the slave, the evidence that it was the result of carelessness, would not have established the cause of action stated in the petition. Leonard, J., said: “The facts of the present case would, under the former system of procedure, have supported an action of trespass, and cannot, we think, be distinguished from the cases cited. In one of them, the party, in uncocking his gun, accidentally discharged it and wounded a bystander. Here, the defendant accidentally struck the hammer of his gun against his saddle, and the same result ensued. In both cases it was upon the defendant to show that it happened, as the books say, by inevitable accident, and without the least fault, and the change that has been introduced by the new code in the remedy, has not changed the rules of law as to the liability of the...