Gray v. McDonald

• Decision Date: 11 May 1891
• Citation: 104 Mo. 303,16 S.W. 398
• Parties: GRAY v. McDONALD.
• Court: Missouri Supreme Court

16 S.W. 398

104 Mo. 303

GRAY v. McDONALD.

Supreme Court of Missouri, Division No. 1.

May 11, 1891.

DEATH BY WRONGFUL ACT — EXEMPLARY DAMAGES — CONTRIBUTORY NEGLIGENCE.

1. The judgment of acquittal, in the criminal prosecution for killing a man, is no bar to a civil action for his wrongful death, and is therefore properly struck from the answer as irrelevant.

2. Under Rev. St. Mo. 1879, § 2122, preserving the right of action in cases where death ensues from a wrongful act, etc., the person aiding or abetting the wrongful act is equally liable in damages with the person who actually perpetrates it.

3. Where the evidence is conflicting as to whether the father, who was present at the time his minor son assaulted and killed plaintiff's intestate, abetted and encouraged his son in the act, the verdict finding that he did will not be disturbed.

4. Contributory negligence on the part of deceased, in not avoiding the conflict, is no defense to an action for his wrongful death, as the doctrine of negligence has no application to the case, a man's right to personal security being absolute.

5. Under section 2122, supra, preserving the right of action in case death ensues, and section 2123, limiting the recovery to an amount not exceeding $5,000, as the jury may deem just, with reference to the injury inflicted, "and also having regard to the mitigating or aggravating circumstances" attending the act, exemplary damages are recoverable when the circumstances justify their award.

Appeal from circuit court, Livingston county; JAMES M. DAVIS, Judge.

C. T. Garner & Son, J. L. Farris, John Cross, and F. Sheets, for appellant. Crosby Johnson, John E. Waite, Davis & Rogers, J. F. Harwood, J. D. Ross, and C. H. Mansur, for respondent.

BLACK, J.

The plaintiff, who is the widow of John Q. Gray, brought this suit against William W. McDonald and William G. McDonald to recover damages for killing her husband. William W. having been acquitted in a criminal prosecution, the suit was dismissed as to him. On the second trial the plaintiff recovered a judgment for $1,500, which was reversed by the Kansas city court of appeals. 28 Mo. App. 477. The third trial resulted in a judgment for plaintiff for $4,000, from which this appeal is prosecuted.

The amended petition upon which the cause was tried states, in substance, that William W. McDonald intentionally and maliciously shot and killed Gray, and that the defendant, William G. McDonald, aided and abetted in the killing. William W. McDonald was a young man about 20 years old, and resided with his father, the present defendant. Gray and the McDonalds lived within three-fourths of a mile of each other, and near the village of Lisbonville, in Ray county. The defendant says he was on friendly terms with Gray, though it appears he had not been at the latter's house for a year before the shooting. The McDonald house had been searched by an officer for alleged stolen boots, and it appears young McDonald had heard that Gray instigated the search, and that Gray accused him of stealing the boots. It does not appear very clearly when the boy first received this information, but we infer it was on the day of the shooting. The village of Lisbonville is a small place, with a few houses arranged around what is called "Allen's Mill." Bishop's store fronted south, and had a porch in front of it, and the mill stood less than 100 feet south of the store. Langford's store fronted east, and the mill was 100 feet nearly east from that store. Young McDonald had been to the village in the forenoon, and returned in the afternoon. He borrowed a coat and pistol at Bishop's store, left for a short time, and then returned. In the mean time the defendant had arrived, and was sitting on the porch with some other persons, and the boy sat down by his father. From the evidence of defendant, it appears he and the boy had some conversation about the information the boy had received, to the effect that Gray instigated the search, and accused the boy of stealing the boots; but the record is not clear as to how long this conversation lasted, though it could not have been long. While the defendant, his son, and others were sitting on the porch, Gray came out of the mill with a sack of meal on his shoulder, going to Langford's store. The boy said, "There goes old John Gray, and I am going to tackle him about the boots;" or, as another witness says, "Now is a good time to settle with old Gray about the boots." The boy got off the porch, and walked towards and addressed Gray in profane and exceedingly vulgar language. Gray turned around, raised his hat, and said to the boy, "How do you do, Mr. McDonald;" and then walked on, and the boy repeated the same, or nearly the same, language that he had before used. Gray, having reached the sidewalk, threw down his sack of meal, and asked the boy what he wanted; and the boy said, "I mean what I say; I can lick you;" or, as one witness says, "I intend to lick you." Gray then said, "If you want anything, come over here, and you can get it;" and the boy replied, "I will meet you half way." One witness states what then transpired in these words: "Mr Gray advanced towards him, and young McDonald drew a revolver from his right-hand pants pocket, and put it partly behind him. When Mr. Gray saw him draw his pistol, and put it behind him, he picked up a stone, and advanced on towards young McDonald, who said: `Old man Gray, you are marching to your grave.' Gray threw the stone at McDonald, who dodged down, and it did not hit him. Young McDonald took his pistol from behind him, and shot Gray in the left breast. Gray kept advancing towards him, and McDonald shot him again in the left breast, not more than five or six inches from where he first shot him. Old man McDonald seized old man Gray by the left shoulder with his left hand, and struck him two licks with his right fist. It appeared to be on the back of his head or on the neck. Mr. Gray turned, and said something, but I did not understand what it was." Gray died within 30 minutes; and, according to another witness, Gray said, "The scoundrel has shot me;" and the defendant said, "Yes, he ought to have killed you." One witness states that, at the time Gray picked up the stone, "old man McDonald was standing 3 or 4 feet from his son, between his son and the porch of Bishop's store. Old man McDonald was in plain view of his son when his son drew his pistol. Was about 6 feet from him. He said nothing to prevent his son from shooting Gray. He said nothing to his son at the time he drew his pistol nor at the time he did the shooting; did nothing but walk up to Gray, and take hold of his shoulder, and strike him twice, as I have related." According to one of plaintiff's witnesses, defendant said to the boy, when the latter first spoke to Gray, "Let him go;" and another witness for the plaintiff testified that old man McDonald said, in a careless way, "Oh, never mind about that." Defendant borrowed $30, and left for Hamilton, immediately after the shooting, but we are not informed where Hamilton is. According to Langford, defendant said, when borrowing the money, "We have to get out of this pretty quick." Evidence of subsequent statements of defendant tends to show that he interfered because he thought Gray more than a match for the boy, but these statements are denied by the defendant. The evidence of the defendant is to the effect that he repeatedly told the boy to let Gray alone, that he interfered for the purpose of separating them, and that he did not strike Gray. George C. McDonald, who was an eye-witness to the transaction, says defendant told the boy twice to let Gray alone; that defendant told Gray not to throw the rock at his son.

1. On motion of the plaintiff, the court struck out that part of the answer which set up the fact that William W. had been indicted for the murder of Gray, and upon a trial was duly acquitted of the charge, and this ruling is assigned as error. The right of action for an injury done in the commission of a felony or misdemeanor is not merged in the public offense. Section 1673, Rev. St. 1879. A criminal prosecution by the state, and a civil action for damages arising from the same act, may be carried on at the same time against the same defendant. Cooley, Torts, 88. The parties to the two actions and the redress afforded by them are different; so that, according to the plainest principles of laws, a judgment in one proceeding is no bar to the prosecution of the other. Freem. Judgm. § 319. Hence it has been held, and properly held, that, in a suit by a widow against a party for killing her husband, the record of acquittal of such party on an indictment for murder of the husband is irrelevant. Cottingham v. Weeks, 54 Ga. 275. The judgment of acquittal on the indictment...