Hoggard v. Dickerson
| Decision Date | 12 May 1914 |
| Citation | 165 S.W. 1135,180 Mo.App. 70 |
| Parties | JOSEPH HOGGARD, THOMAS HOGGARD and C. E. MURPHY, Respondents, v. R. P. DICKERSON, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Greene County Circuit Court.--Hon. Alfred Page, Judge.
AFFIRMED.
Judgment affirmed.
Patterson & Patterson for appellant.
(1) The petition is defective in not averring a knowledge of and a reliance upon the reward as a consideration for the services of respondent. Smith v. Vernon County, 188 Mo. 515. (2) The court erred in giving plaintiff's instruction numbered 1 and refusing defendant's instruction numbered 10. Jenkins v. Clopton, 141 Mo.App. 74; Miller v. Mo. & Kan. Tel. Co., 141 Mo.App. 462; Mead v Brotherton, 30 Mo. 201; Greer v. Parker, 85 Mo 107. (3) Instruction No. 2 given for plaintiff is erroneous because it tells the jury that under the law the defendant could not make a settlement of plaintiffs' possible claim against him without making a settlement of all claims for a reward for the capture of the slayer of Stanley Ketchel, and furthermore in that same immediate connection charges the jury that the defendant could not make a settlement with plaintiffs unless plaintiffs fully understood that in receiving said $ 15 they were settling in full and did not expect any other or further payment on such account. (4) Cautionary instruction numbered 7, for defendant should have been given. Worley v. Dryden, 57 Mo. 233. (5) One cannot recover a reward where his acts were performed with knowledge of the offer, but without any intention to claim it. 34 Cyc., 1752; Hewett v. Anderson, 56 Cal. 476; 38 Am. Rep. 65; Able v. Pembroke, 61 N.H. 357; Smith v. Vernon County, 188 Mo. 513. (6) The offer to pay a reward may be revoked at any time before its acceptance by performance, since an unaccepted offer creates no contractual rights. 34 Cyc. 1737; Biggars v Owen, 79 Ga. 658, 5 S.E. 193; Mitchell v. Abbott, 86 Me. 338, 41 Am. St. 559; Janverin v. Exeter, 48 N.H. 83, 2 Am. 185; Shuey v. U.S. 92 U.S. 73.
Dickey & Dickey and J. T. White, for respondents.
(1) The petition does allege directly and positively that plaintiffs had knowledge of the offered reward and acted upon it. It is a necessary inference that they relied upon it or they would not have acted upon it. Even if that averment were essential, the want of it is cured by the verdict. State ex rel. Rife v. Reynolds, 137 Mo.App. 261; Thomason v. Ins. Co., 114 Mo.App. 109; Wiercarver v. Insurance Co., 137 Mo.App. 247; Wiler v. Ratican, 150 Mo.App. 475; R. S. 1909, Secs. 1850 and 2119. (2) The court did not err in refusing defendant's instruction numbered 10. It is covered essentially by defendant's instruction numbered 2. Instruction numbered 1 for plaintiff covers all that number 2, for defendant, covers and is the converse of it. Asbill v. City of Joplin, 140 Mo.App. 262; Shaller v. Friedman Bros. Shoe Co., 130 Mo.App. 727; Johnson v. Traction Co., 161 S.W. 1193. (3) Instruction number 2, given for plaintiff, was proper. Defendant offered to show that he settled with plaintiffs by giving a check for $ 15. The court of its own motion gave instruction number 1, in which the jury are instruction to find for defendant if the settlement was so made. The instruction complained of was proper to direct the attention of the jury to the essential elements of a contract of that kind, that plaintiffs understood it was a settlement as well as defendant. Goodrich v. Stanley, 24 Conn. 613. (4) Cautionary instructions of the character of defendant's instruction number 7 are always given or refused at the discretion of the trial court. Appellate courts will not reverse a case for failure to grant instructions directing the jury to receive verbal statements with caution. Webb v. Baldwin, 165 Mo.App. 640, 147 S.W. 849; State v. Clump, 16 Mo. 385; Beasly v. Jefferson Bank, 114 Mo.App. 406; State v. Hicker, 95 Mo. 322; McCormick v. City of Monroe, 64 Mo.App. 197. (5) It is not necessary, in order to recover a reward of this character, that the party claiming it should have knowledge of the offer at the time of making the arrest. It is entirely sufficient if he learns of it before he delivers the prisoner into custody. Smith v. Vernon County, 188 Mo. 501; Coffey v. Commonwealth, 37 S.W. 875; 34 Cyc. Law & Pro., 1742. (6) Revocation of the reward was not pleaded which is necessary to establish that defense. Roberts v. Fuller Construction Co., 115 Mo.App. 456. (7) A party is restricted on appeal to the theory adopted at the trial. Manzke v. Goldenberg, 149 Mo.App. 12; Bank v. Zook, 133 Mo.App. 603; Hume v. Hale, 146 Mo.App. 659.
Farrington, J., not sitting.
--The jury in this case by its verdict held the defendant liable to plaintiffs for the payment of a reward of $ 5000, alleged to have been offered by defendant to the public for the capture of the slayer of Stanley Ketchel, who was shot and robbed on October 15, 1910, at a farm owned by defendant in Webster county, Missouri, known as the Dickerson ranch. There was little or no doubt at the time that one Walter Dipley, then living on such ranch, was the guilty party and the reward offered was practically, if not in terms, applicable to him. The friendship existing between defendant and the slain man was very close and Ketchel was at the time of his being shot a guest of defendant at his ranch. Ketchel was well known as the middleweight champion pugilist and the defendant is a prominent business man of Springfield, Missouri. The shooting of Ketchel occurred in the morning and Dipley, who did the shooting, at once fled, heavily armed. On defendant being informed of it, he at once chartered a special train at Springfield, took with him a man with bloodhounds, gathered all the officers within reach, and with some of his close friends went to Conway, the nearest railroad point to the scene of the killing. He was evidently very much wrought up and showed a determination to have the guilty man captured and punished. Efforts were made at the ranch to track the escaped murderer but without avail. The defendant, with his friends, officers, etc., took the slain man back to the special train at Conway in the afternoon and from there to Springfield.
It is claimed that the defendant, both publicly and privately, offered a reward of $ 5000 to any one who would capture the person who shot Ketchel, both while at the farm and at Conway just before the special train departed on its return to Springfield. While defendant, by his answer, denies the allegations of the petition generally, his evidence shows and he admitted that he did offer a reward for the body of the person who shot his friend Ketchel but that his offer was "for him dead, not one cent for him alive." The defendant also sets up the defense of a settlement between plaintiffs and himself, whereby the plaintiffs accepted $ 15 in full settlement of their claim. There were a large number of witnesses examined on both sides, the battle being waged for the most part as to whether defendant offered a reward for Dipley dead or for him dead or alive. It was admitted on the trial that Dipley was tried and convicted of the murder of Ketchel and sentenced to the penitentiary for life. It was also shown, without contradiction, that plaintiffs, who were farmers in Webster county, captured Dipley the next morning after the commission of the crime and delivered him to the sheriff and jail of that county. We will speak more of the manner of the arrest in connection with the plaintiffs' knowledge of and reliance on the reward in making it.
A careful analysis of all the evidence is well calculated to convince a jury, as it doubtless did, that while defendant's preference was, in his anger, excitement and intense feeling against the murderer of his friend, to have the guilty party killed rather than captured and brought to trial, yet, that he did offer a reward for his capture regardless of his being brought in dead or alive. The evidence shows that he began talking this offer of reward even before reaching the scene of the killing; he stated it several times at the farm to different men or groups of men; he stated it two or three times on the return to Conway before the train left for Springfield. It is doubtless true that he did not always state it in the same terms, though there is no variation as to the amount. He evidently gave way, especially in talking to individuals who were his friends, to his desire for revenge in stating his offer of reward and told them to bring him in dead, or that he was armed and dangerous and to shoot him down and take no chances, or to shoot him first and cry halt afterward, and other such expressions, showing a desire to have him killed rather than captured. There is abundant evidence to show, however, that to other persons and especially when making the offer publicly, as he did from the car door at Conway, he stated the reward would be given for him dead or alive, or simply for his capture. In finding for the plaintiffs the jury may not have discredited the witnesses who testified to his making the statement that he desired to have him killed, nor even as to his saying on one or two occasions that he only wanted him dead and would not pay one cent for him alive. The evidence shows that on the return of defendant and his party from the ranch to Conway, and just prior to the special train leaving for Springfield, the defendant from the car door made a public proclamation of his offer of reward, repeating it two or three times, to a hundred or more persons gathered there. While the witnesses do not all state the offer made on this occasion in the same words, yet, the preponderance, as to numbers, is in favor of plaintiffs that he did not then...
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