Lofton v. Vogles

• Decision Date: 27 November 1861
• Citation: 17 Ind. 105
• Parties: Lofton v. Vogles, Administrator of Vogles
• Court: Indiana Supreme Court

17 Ind. 105

Lofton v. Vogles, Administrator of Vogles

Supreme Court of Indiana

November 27, 1861

APPEAL from the Washington Circuit Court.

The judgment is reversed, with costs. Cause remanded for further proceedings, in accordance with this opinion, with leave to either party to amend.

C. L Dunham and Horace Heffren, for the appellant.

R Crawford, J. H. Stotzenburg and T. M. Brown, for the appellee.

OPINION

Perkins J.

Simeon Lofton killed John Vogles. The administrator of Vogles now sues Lofton, in a civil action, to recover damages for the loss of Vogles' life.

The suit is brought upon § 784, p. 205, 2 R. S., which provides that "when the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he lived, against the latter, for an injury for the same act or omission."

The former, had he lived, could not have maintained an action, in the case at bar, against the latter for the tortious act or omission complained of, if his own misconduct contributed directly to that tortious act or omission. 1 Hilliard on Torts, p. 132; The Pittsburgh, &c. Railroad Co. v. Karns, 13 Ind. 87.

Did, then, Vogles commit any wrongful act which caused the tort whereby he came to his death? The witness on the part of the plaintiff thus states the transaction:

"I saw Lofton coming out to the pike from the direction of Vogles' store door, walking rapidly, and turning westward up the pike, as if going home. I saw Vogles come out of his store after Lofton, walking rapidly, and come round in front so as to face him. He was talking loud and angrily. He repeatedly called Lofton a damned liar, and on Lofton's replying that he lied, Vogles 'grabbed at Lofton's throat,' with one hand, and struck him with the other. Lofton then drew a small, old broken pocket knife and stuck Vogles. Vogles then gathered brick-bats and stones, which he threw at Lofton. Vogles died of the wounds he received in the fight, from Lofton's knife. Lofton expressed great sorrow at the occurrence, and the act he had committed, and said it was only because he was 'jumped on to' so violently that it was the only alternative left to save himself." Vogles was a much younger man than Lofton, about the same size, but much the more active and athletic. He was a quick, active man, about thirty years of age. See 14 Ind. 1. If this evidence, and it represents the case, does not show that the wrongful act of Vogles contributed to produce the act which caused his death, it is difficult to conceive of any that would. The evidence does not show that Lofton had given Vogles any cause to pursue him on leaving the store, but the contrary. Lofton had called at the store to collect money that Vogles owed him. Vogles insulted Lofton; the latter...