Gray v. McDonald

• Decision Date: 11 May 1891
• Parties: Gray v. McDonald, Appellant
• Court: Missouri Supreme Court

16 S.W. 398

104 Mo. 303

Gray v. McDonald, Appellant

Supreme Court of Missouri, First Division

May 11, 1891

Appeal from Livingston Circuit Court. -- Hon. James M. Davis, Judge.

Affirmed.

C. T Garner & Son, J. L. Farris, J. A. Cross and F. Sheetz for appellant.

(1) Under the statute authorizing this action only the person who committed the homicide is liable. It is the wrongful act producing death which creates the liability. R. S. 1889, sec 4426; Proctor v. Railroad, 64 Mo. 112; Dulaney v. Railroad, 21 Mo.App. 597; Jackson v Railroad, 87 Mo. 424. (2) The presence of defendant at the difficulty and his not interfering to prevent it, his striking Gray with his fist after the shooting and the approval of the latter are not sufficient to create a liability. Gray v. McDonald, 28 Mo.App. 477; Cooper v. Johnson, 81 Mo. 483. (3) The record shows the homicide on the part of young McDonald was a justifiable or excusable one. Morgan v. Durfee, 69 Mo. 469; Nichols v. Winfrey, 79 Mo. 544. (4) The death of deceased was in part occasioned by his own concurring or contributory act which bars recovery in this case. Craig v. Sedalia, 63 Mo. 417; Kempinger v. Railroad, 3 Mo.App. 581; Smith v. St. Joseph, 45 Mo. 452; Smith v. Railroad, 61 Mo. 592; Powell v. Railroad, 76 Mo. 80; Henry v. Railroad, 76 Mo. 288. (5) The damages are excessive.

Crosby Johnson, John E. Waite, Davis & Rogers, J. F. Harwood, J. D. Ross and C. H. Mansur for respondent.

(1) The doctrine of contributory negligence has no application to cases of this sort. Gray v. McDonald, 28 Mo.App. 477; Besendecker v. Sale, 8 Mo.App. 211; Nichols v. Winfrey, 79 Mo. 544; McCue v. Klein, 48 Am. Rep. 260; 60 Tex. 168; Cooley on Torts [1 Ed.] 162. (2) If two persons by mutual consent, in anger, fight together, each is liable to the other for actual damages inflicted. Shay v. Thompson, 48 Am. Rep. 538; 59 Wis. 540; Cooley on Torts [1 Ed.] 159 and 163; Dole v. Erskine, 35 N.H. 503. (3) One who brings on a difficulty, with the purpose of killing his adversary and then does, in the course of the difficulty, kill him, cannot shield himself under the law of self-defense state v. Gilmore, 95 Mo. 554; State v. Parker, 96 Mo. 383. (4) As the son had brought on the difficulty, and the defendant was present and knew all the facts, neither the defendant nor his son had a right to kill Gray to save the son from peril which he had brought upon himself, until after the son had done all he could to avoid the killing of Gray. 2 Bish. Cr. Law, sec. 665; State v. Linney, 52 Mo. 40. (5) As defendant was present aiding and encouraging his son, he must be regarded as a principal and held responsible for the consequences of his son's acts. Gray v. McDonald, 28 Mo.App. 477; Cooper v. Johnson, 81 Mo. 483. (6) After the son had provoked the difficulty, the defendant could not legally take the life of Gray to save the son's, until the son had abandoned, or offered to abandon, the contest. Crowder v. State, 8 Lea, 669; State v. Greer, 22 W.Va. 800. (7) As the defendant stood ready to defend his son, he was guilty even though his assistance had not been given; for in such case his presence would have given encouragement to the son. Allred v. Bray, 41 Mo. 484; State v. Nelson, 98 Mo. 414; State v. Hildreth, 51 Am. Dec. 371, and note. (8) Evidence of the defendant's good character was improperly admitted, and cannot be considered in determining the case. Brown v. Evans, 17 F. 912; Elliott v. Russell, 92 Ind. 526; Sowell v. McDonald, 58 Miss. 281. (9) The court did not err in striking out the fourth count of the answer, pleading the acquittal of W. W. McDonald. The parties to that case, both plaintiff and defendant, were different from this. Hence, the judgment there was not evidence for or against either party. Freeman on Judg., sec. 319; Dugg v. Stumpe, 73 Mo. 513. (10) As the defendant in his instructions adopted the theory, that, if the defendant had aided his son in the difficulty, he was liable, he will not be heard to complain of the plaintiff's instructions. Bank v. Armstrong, 92 Mo. 265. (11) By adopting the same theory as to the facts that would make him liable, he is now estopped from saying that the theory was erroneous. Reilly v. Railroad, 94 Mo. 601. (12) There was no error in refusing the refused instructions, as, so far as they were correct, their principles were embraced in those given. Brown v. Railroad, 99 Mo. 310. (13) Where there are elements of wantonness and malice, the jury is authorized to award exemplary damages. Goetz v. Ambs, 27 Mo. 29; Kennedy v. Railroad, 36 Mo. 365; Welsh v. Stewart, 31 Mo.App. 376; Clark v. Fairley, 30 Mo.App. 336. (14) The jury were authorized to exercise discretion in awarding damages and the sum awarded was not excessive. Adams v. Railroad, 100 Mo. 555; Waldhier v. Railroad, 87 Mo. 38.

Black, J. Barclay, J., concurs in the conclusion reached and in the construction of section 4427 (R. S. 1889) but not in all the observations made touching exemplary damages in other cases.

OPINION

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 twenty 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 one hundred feet south of the store. Langford's store fronted east, and the mill was one hundred 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 meantime, 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 toward 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 toward 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 toward 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 thirty 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 three or four 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 six feet from him. He said nothing to prevent his son...