Johnson v. Daily
| Decision Date | 19 April 1909 |
| Citation | 118 S.W. 530,136 Mo.App. 534 |
| Parties | WILLIAM JOHNSON, Respondent, v. JOHN R. DAILY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Harrison Circuit Court.--Hon. George W. Wanamaker Judge.
AFFIRMED.
Judgment affirmed.
John M Sallee and S. P. Davisson for appellant.
(1) If these two instructions are not directly in conflict with each other then I fail to understand the meaning of the English language. Our courts have frequently held that when two independent instructions or declarations of the law are directly in conflict, one of them declaring the law correct and the other erroneous, one does not cure the other and the error is a reversible one, since the appellate court cannot tell by which one the jury was guided. Shepherd v Transit Co., 189 Mo. 373; Flynn v. Bridge Co., 42 Mo.App. 536; A. G. Brown v. Land & Lumber Co., 65 Mo.App. 167. (2) For the error above noted the cause must be reversed and remanded for a new trial and this is true, though one instruction may be correct, the error is not cured by it since no one can tell which one governed the jury. Mansur-Tibbetts Imp. Co. v. Ritchie, 143 Mo. 612; Billups v. Daggs, 38 Mo.App. 369; McKinnon v. Coal & Mining Co., 120 Mo.App. 164. (3) Instruction number 2 is wrong and constitutes reversible error and ought never to have been given. Orscheln v. Scott, 79 Mo.App. 540; Wilkerson v. Eilers, 114 Mo. 252; Ragan v. K. C. Railroad, 144 Mo. 634; Benne v. Miller, 149 Mo. 239; Mather v. Walsh, 121 Mo. 121. (4) This instruction is also erroneous in that it places the burden of proof upon the defendant when in truth and in fact the pleadings settled the burden of proof to be upon the plaintiff and this could not change during the entire trial and the refusal of the defendant's instruction numbered 5 that the burden was upon the plaintiff was simply aggravated by giving instruction numbered 2 on part of the plaintiff. Nicholas v. Wimfrey, 79 Mo. 550; Orscheln v. Scott, 79 Mo.App. 534; Orscheln v. Scott, 90 Mo.App. 367; Mansur-Tibbets Imp. Co. v. Ritchie, 143 Mo. 610; Albert v. Besel, 88 Mo. 153; McCartney v. State Insurance Co., 45 Mo.App. 373; Bunker v. Hibler, 49 Mo.App. 543; Long v. Long, 44 Mo.App. 147; Trust Ex'r. v. Ambrose, 34 Mo.App. 366; Bank v. Wood, 124 Mo. 77; Edmondson v. Henry, 45 Mo.App. 349; Long v. Long, 44 Mo.App. 141; Marshall Livery Co. v. McKelvy, 55 Mo.App. 242; Heinemann v. Heard, 62 N.Y. 448; Scott v. Wood, 81 Cal. 400; Willett v. Rich, 142 Mass. 356; Powers v. Silberstein, 108 N.Y. 171; Wilder v. Cowels, 100 Mass. 487. (5) Instruction numbered 2 was erroneous for other reasons, especially so in a civil action for homicide. State v. Hickman, 95 Mo. 329; State v. Wingo, 66 Mo. 181; Nicholas v. Winfrey, 79 Mo. 550.
Barlow & Barlow, J. C. Wilson and Wm. H. Leazenby for respondent.
(1) Self defense is a law of necessity. It is dernier ressort, the exercise of an extreme and supreme right, and is not to be enforced except when all other means fail or are apparently likely to fail. State v. Gilmore, 95 Mo. 554; State v. Babor, 95 Mo. 593; State v. Smith, 114 Mo. 421; Orscheln v. Scott, 90 Mo.App. 352; Happy v. Prichard, 111 Mo.App. 6; Brouster v. Fox, 117 Mo.App. 711; Herman v. Comptonhill Imp. Co., 58 Mo.App. 480. (2) Instruction numbered 2 for the respondents is correct under the admissions in appellant's answer. Cahill v. Railroad, 205 Mo. 393; Williams v. Williams, 132 Mo.App. 266. (3) Instruction numbered 3 for the plaintiff under the evidence of the plaintiff as well as of the defendant, is clearly the law, as the appellate court has repeatedly said. The right of self defense does not imply the right of attack, and it will not avail in any case where the defendant voluntarily enters into or brings on the difficulty by any wilful act of his. State v. Hardy, 95 Mo. 457; State v. Gilmore, 95 Mo. 554; State v. Taber, 95 Mo. 593; State v. Feeley, 194 Mo. 300.
This is an action for assault and battery in which plaintiff obtained judgment in the trial court.
The evidence showed much ill-feeling between the parties had existed for a considerable period. They were relatives and neighbors residing in the country in Harrison county. Finally they met in the public road. Defendant in his buggy passed plaintiff who was walking in the road. The buggy wheel brushed against plaintiff and thus started a fight between them resulting in defendant committing the assault with a hammer. Who was the aggressor was a matter of dispute between the parties. As to whether there was any occasion for self-defense on defendant's part was likewise a matter of dispute. Indeed, such was the state of contradictory evidence in the cause, we need not go into any detailed statement of it, since it was all submitted to the jury who found in plaintiff's favor, and since we must abide by that finding it is only cumbering the record to set forth what the evidence was upon which the jury acted.
We will therefore address ourselves to the criticism made of the instructions. One was given for plaintiff wherein it was declared that if defendant violently and wilfully beat and wounded the plaintiff, then the verdict should be for him unless plaintiff first made an attack on defendant and that he resisted such attack by using no more force to repel it than was necessary. Defendant claims that instruction to be in conflict with No. 2 given at his request, wherein the jury were told that if they believed the defendant apprehended that plaintiff was about to do him some great bodily harm and that there was reasonable cause for believing the danger was imminent and that such danger was about to fall upon him, then he had a right to act on appearances and to use such force as seemed necessary to avoid the danger, and he was not required to nicely gauge the amount of force necessary to repel the assault. The first of these directs in plaintiff's behalf that if defendant assaulted and beat plaintiff, then the finding should be for him unless it appeared from the evidence that plaintiff first attacked him and he resisted with no more force than was necessary. Speaking in general terms, the second directs in defendant's behalf, and in keeping with his defense, that though he may have assaulted plaintiff, yet he had a right to make such assault if the appearances justified him in judging from plaintiff's actions that plaintiff was about to inflict great bodily harm upon him. We do not see any such conflict between them, when read together, as would justify us in saying that they would mislead or confuse the jury.
Instruction numbered 2, given for plaintiff, is said to be erroneous in that it states that defendant admits striking the plaintiff. In our opinion the evidence justified the instruction. In view of defendant...
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