Davis v. Modern Woodmen of America
| Decision Date | 06 April 1903 |
| Parties | ILA DAVIS et al., Respondents, v. MODERN WOODMEN OF AMERICA, Appellant |
| Court | Kansas Court of Appeals |
Rehearing Denied 98 Mo.App. 713 at 721.
Appeal from Vernon Circuit Court--Hon. H. C. Timmonds, Judge.
REVERSED.
Judgment reversed.
King & Elliott and M. T. January for appellant.
(1) Where the positive unimpeached testimony of eye-witnesses is sustained by the physical facts and there is no substantial evidence to the contrary, the case should be withdrawn from the jury. Bank v. Bank, 151 Mo. 320; Kornfeld v Supreme Lodge, 72 Mo.App. 604; Jackson v Hardin, 183 Mo. 175; Reichenbach v. Ellerbe, 115 Mo. 588; Fulbright v. Perry Co., 145 Mo. 433; Sehr v. Lindemann, 153 Mo. 276; Schierbaum v. Schemme, 157 Mo. 1; May v. Crawford, 150 Mo. 504. (2) A party who seeks and provokes a difficulty can not set up the plea of self-defense. And if in such case he assaults another with a deadly weapon and is himself killed, his death is necessarily the result of a violation or attempted violation of the law. State v. Brown, 63 Mo. 439; State v. Gamble, 119 Mo. 427; State v. Hudson, 59 Mo. 135. (3) Where two parties voluntarily enter into a combat with deadly weapons, under an agreement to fight, expressed or tacitly understood, the act constitutes a duel.
Scott & Bowker for respondents.
(1) One has a right to protect his home and property, even to the extent of taking life if it becomes necessary, and, therefore, has a right to arm himself when he goes out toward the intruder. State v. Roper, 141 Mo. 327. (2) In order to deprive a person of the right of self-defense on the ground of voluntarily entering into a difficulty, it must be shown that he did so for the purpose of wreaking his malice or taking the life of his adversary or doing him some great bodily harm. State v Adler, 146 Mo. 18; State v. Rapp, 142 Mo. 443. (3) The fact that one puts himself in the way of being assaulted by another, though he expects the latter will attack him, does not preclude him from setting up selfdefense. State v. Evans, 124 Mo. 410; State v. Matthews, 148 Mo. 185.
--This action is based on a benefit certificate of life insurance issued by defendant to John W. Davis in the sum of three thousand dollars; one thousand for the benefit of his wife, and two thousand for his surviving children. He died leaving a widow and two children. The widow assigned her interest to the children and they are the plaintiffs seeking to recover the full amount of the certificate. They obtained judgment in the trial court.
The certificate contained two provisions which bear upon the case: They were that, if Davis's death "occurred in consequence of a duel, or of any violation or attempted violation of the laws of any State or Territory of the United States," the certificate should become void. Davis was shot and killed by one L. E. Bryan at the side of the public road in front of his house. The defense to the action is based upon the contention that he was killed, either in a duel with Bryan or while engaged in a violation of the law of the State.
1. We think the word "duel," as it appears in the present contract, 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. And so the word is doubtless understood when found in our laws placing certain disabilities on those who may engage in a duel. Herriott v. State, 1 McMul. 126; 1 Bouvier's Law Dict. The evidence in the record fails altogether to show that the encounter between Bryan and the deceased was of such character as to be classed as a duel, and we therefore reject that theory of defense.
2. We have then only to consider the other cause of defense, viz., that the deceased came to his death in consequence of a violation of the law. The evidence took a wide scope and this was quite natural when the character of the difficulty, the length of time it had been brewing, and its unfortunate ending is considered. Davis was killed by Bryan early in the morning of the 3d of July, 1901. The evidence shows that Bryan, Davis and one Chaney were farmers living in the same neighborhood in Vernon county. That Bryan lived on a public road running east and west which connected with a road running north and south on which Davis and Chaney lived, Bryan's house being about three-fourths of a mile from Davis's; and Chaney's premises and pasture gateway being a short distance beyond Davis's. Shortly after daylight on the morning of the 3d of July, Bryan discovered that one of his mules was missing. He saw by tracks in the middle of the road that it had gone east towards the north and south road. He (as he stated, supposing it had been stolen) then saddled a pony, got his shotgun, and started out in hunt of the mule. He traced it by the tracks on the north and south road past the Davis premises and on until it turned into the gate into Chaney's pasture. He, with Chaney's assistance, drove it out into the road headed for home; he following on the pony.
These are uncontroverted facts, and we come now to what the records show as to acts of the two men towards each other and which resulted in Davis being killed. Davis and his wife were at the breakfast table that morning as Bryan was coming north on the road approaching their house and Mrs. Davis saw him through the window as he came riding north and saw that he had a gun. She called her husband's attention and he, too, saw him. He then went to the front door, the upper half of which was glass, looked out, turned back and got his shot gun and went out into the yard. Bryan testified that he (Davis) hailed him in a "loud and infuriated" tone, but that he could not hear what he said, but that Davis followed him on up the road towards Chaney's for a considerable distance. Mrs. Davis stated that when her husband got the gun and went out the front door, she did not see either of the men but that she could hear that they were saying something to each other. After Bryan had gone by and was in Chaney's pasture getting the mule, Mrs. Davis went out to the yard gate and found that her husband was at the big gate leading into the lot, and he came down to where she was, but it was not known what they said together. She then returned to the house and Davis to the lot gate. The fences along this road were hedge and Davis's lot gate set back in a recess of some four or five feet, so that one standing at the gate would be at least partially hidden from the view of one coming along the road. Here Davis waited fifteen or twenty minutes. That he waited for Bryan's return is not questioned, When he did return along the road and got about opposite to where Davis was standing each began firing at the other, with the result that the shot fired by Davis tore off the muscle of Bryan's arm and the shot fired by Bryan struck Davis in the side, from which he died within an hour. There was much evidence on the question of which of the two fired the first shot. And so a great deal of testimony was given as to threats made by Bryan beginning back five or more years when Davis fired at...
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