Hartman v. Hoernle

• Citation: 201 S.W. 911
• Decision Date: 05 March 1918
• Docket Number: No. 14948.,14948.
• Parties: HARTMAN v. HOERNLE
• Court: Court of Appeal of Missouri (US)

201 S.W. 911

HARTMAN v. HOERNLE

No. 14948.

St. Louis Court of Appeals. Missouri.

March 5, 1918.

Appeal from Circuit Court, Scotland County; N. M. Pettingill, Judge.

"Not to be officially published."

Action by William E. Hartman against John C. Hoernle. Judgment for plaintiff, and defendant appeals. Affirmed.

J. M. Jayne and J. E. Luther, both of Memphis, for appellant. J. A. Whiteside, of Kaholm, and Lewis Myers and H. V. Smoot, both of Memphis, for respondent.

ALLEN, J.

This is an action to recover damages for the shooting and wounding of plaintiff by defendant. The trial below, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $145, and the defendant prosecutes the appeal.

It appears that on August 14, 1914, after nightfall, plaintiff, a young man then about 21 years of age residing with his father on a farm in Scotland county, entered upon defendant's farm, with some companions, for the purpose of taking therefrom watermelons belonging to defendant. Defendant, armed with a shotgun, had secreted himself in his cornfield, near his "melon patch," which, according to his testimony, had been previously entered by some persons who took melons and injured his vines. After plaintiff and his companions had entered the melon patch, and were in the act of selecting some melons, defendant rushed out from his hiding place and called to them, threatening to shoot any one who might run. Thereupon plaintiff and his companions fled, and defendant discharged his weapon, the load of shot striking and wounding plaintiff. There is some conflict in the testimony of the witnesses as to the length of time that elapsed after defendant made his presence known and before he fired the shot in question, but plaintiff testified that he was running away when shot, and this accords with defendant's testimony. Defendant testified that plaintiff and his companions all ran into the adjacent cornfield, and that he shot in that general direction in order to frighten them, not intending to injure any of them. In fact, many shots entered plaintiff's left side, from the rear, inflicting a severe wound, described by his physician as being several inches in length, 3 inches wide, and 1½ inches in depth.

It is argued that in entering upon defendant's land, for the purpose aforesaid, plaintiff took the chance of receiving an injury of this character, and hence cannot recover. But we regard it as clear that this argument is without merit. The decisions of our courts declare the rule that a plaintiff may make a prima facie case by proof that he was shot by the defendant; the burden being then cast upon the defendant to justify the act. See Morgan v. Mulhall, 214 Mo. 451, loc. cit. 459, 460, 114 S. W. 4. But in any event, in the instant case,...