McLaughlin v. Marlatt

Citation228 S.W. 873
Decision Date07 March 1921
Docket NumberMo. 13405.
PartiesMcLAUGHLIN v. MARLATT.
CourtCourt of Appeal of Missouri (US)

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

Suit by Corwin McLaughlin, by next friend, Seymore McLaughlin, against Lewis Marlatt. From judgment for plaintiff, defendant appeals. Reversed, and cause remanded.

Louis W. Reed, of Breckenridge, and Thos. E. Hicklin and Scott J. Miller, both of Chillicothe, for appellant.

Chas. S. Greenwood, of Braymer, Pross T. Cross, of Lathrop, Paul D. Kitt, of Chillicothe, and Miles Elliott, of St. Joseph, for respondent.

THIMBLE, P.

The suit is for damages on account of plaintiff being wounded by a shotgun through the alleged negligence of defendant. The latter, a man 70 years of age and a farmer of Caldwell county, Mo., had two young men employed In cutting brush on his farm. They slept in a tent on the farm about a quarter of a mile from where they were cutting at the time in question.

In the afternoon of August 23, 1916, defendant was out with his shotgun hunting foxes that had been bothering his wife's chickens.:la the course of his hunt he came to where the boys were at work, and the three seated themselves (the two boys being about 15 feet apart with defendant midway between them), and engaged in conversation. They were in the east edge of a timbered tract. Some bushes or brush were just east of them, and then a fence, running north and south, separated the ground they were in from a cornfield of defendant.

Paintiff, a boy in his sixteenth year, came over to the farm to visit the boys. He first went to their tent, and, not finding them there, started on a search for them, and went west through the cornfield approaching near to the edge of the timber where the boys were. The corn was not checked, but had been drilled in rows running north and south. It was green, and, according to plaintiff's evidence, was about four feet high. According to other evidence in his behalf, the corn was "good size," and there was a little grass, or foxtail, in it about a foot high.

As plaintiff thus went west across the drilled rows of corn he reached a point about three rows inside the cornfield from its west edge. Here he heard the voices of the boys in conversation, seated as above stated. Owing to the intervening brush, plaintiff could see only the top of one of the boys' caps and hence did not see defendant nor his shotgun. According to plaintiff himself, he was about 90 feet away from and due east of them, and according to other evidence in his behalf he was from 50 to 75 feet away. Here plaintiff stopped and listened, but could not understand what they were saying. He says he could easily have spoken to them, but, instead of doing so, he stooped over and "got some clods and threw over there." He did not say a word, and, failing to attract their attention with the first clod, he threw a second and then stooped over to secure another. He did not throw at them, but slightly northeast of them. The noise of the clods falling in the leaves of the brush or trees near the fence row attracted the attention of one of the boys, who said, "It is a fox." Whereupon defendant arose with his shotgun and, seeing the grass "wiggle" or shake as it does where a fox is present, and knowing this sly and wary animal will not expose his body to view if at all possible to avoid it, defendant fired at the shaking grass and severely wounded plaintiff. The latter testified, "I stooped over to pick up another clod, and just as I started to raise up I saw Mr. Marlatt there with a gun, and he shot before I had time to halloo at him." He testified further that defendant shot just as he "started to raise up." On cross-examination he said he was almost straight when shot, that when he was walking "straight up" he could not see the boys, and that when stooped over he was below the tops of the corn. At the trial in January, three years later, he said he was six feet tall, but did not know how tall he was at 16.

Plaintiff put one of the two boys on the stand as his witness. The other testified as a witness for the defendant. Plaintiff's witness said that his attention was first attracted to some noise in the dead brush in the fence row at a point slightly northeast of them, "a little rattling in the sticks there." This evidently was the noise caused by the falling of the clods plaintiff had thrown. Hearing the noise, witness exclaimed, "It must be a fox." Defendant was the first of the three to arise, and upon arising he turned around and fired. Witness says that after the shot, and before seeing anything, he heard plaintiff say, "I am shot," and he stepped to defendant's side and saw plaintiff for the first time, and that he was "pretty near straight when I saw him," that witness exclaimed, "That is Corwin McLaughlin," and that at the time he said that plaintiff "was just kind of humped over a little bit, starting to fall forwards onto his face." Witness said, if plaintiff had walked upright as he came through the corn, they could have seen him had they been looking in that direction. None of them knew or suspected a man was there until plaintiff hollered he was shot, and then defendant exclaimed, "Oh, I have shot a man! I have shot a man!" repeating it several times as he started for help.

The other boy, who as hereinbefore stated was a witness for defendant, testified that upon hearing the noise his coemployé said, "It is a fox," and just after this was said the defendant fired and that, immediately after the shot, "I seen this boy Corwin McLaughlin, he raised up and he hollered "Oh! oh!' like that, and walked a little ways and fell"; that previous to the shooting, he did not see plaintiff.

Defendant testified that he did not hear any noise, but, when one of the boys spoke of it, he, the speaker, jumped up and said, "It is a fox; come here;" and defendant went; that the grass and foxtail in the corn was about 18 inches high, and his companion said, "It is a fox; shoot;" that he saw the grass shaking, and, thinking there was a fox there, he fired; that he did not see the boy nor any object, but saw the grass moving and shot into the grass; that the boy was not standing up or he would have seen him; that he was lying down. There was other evidence in defendant's behalf of witnesses who said that plaintiff told them afterward at various times that he, intending to scare or have some fun with the boys, had lain down in the grass and made a little fuss and was shot. Plaintiff never went upon the stand to deny this. In his evidence in chief he never explicitly said he did not lie down or deny that he did. All that he said was as hereinbefore set and, while he denied that he was trying scare or play a joke on the boys, yet it is manifest from his testimony that he was, for he could give no reason for doing as he says he did, other than that he just "wanted to attract their attention that way."

Now, of course, it is well established that the rule is very strict with regard to liability for Injury resulting from the discharge of firearms. Morgan v. Cox, 22 Mo. 373, 66 Am. Dec. 623; Conway v. Reed, 66 Mo. 346, 355, 27 Am. Rep. 354; Morgan v. Mulhall, 214 Mo. 451, 460, 114 S. W. 4; 12 Am. & Eng. Ency. of Law (2d Ed.) 518; Bahel v. Manning, 112 Mich. 24, 70 N. W. 327, 36 L. R. A. 523, 67 Am. St. Rep. 381; Judd v. Ballard, 66 Vt. 668, 30 Atl. 96; Moebus v. Becker, 46 N. J. Law, 41; Hawksley v. Peace, 38 R. I. 544, 96 Atl. 856, L. R. A. 1916D, 1179; Harrison v. Allen, 179 Ill. App. 520; Harper v. Holcomb, 146 Wis. 183, 130 N. W. 1128; Welch v. Durand, 36 Conn. 182, 4 Am. Rep. 55; Hankins v. Watkins, 77 Hun, 360, 28 N. Y. Supp. 867; Wright v. Clark, 50 Vt. 130, 28 Am. Rep. 496; 11 R. C. L. p. 689; Brittingham v. Stadiem, 151 N. C. 299, 66 S. E. 128; Rudd v. Byrnes, 156 Cal. 636, 105 Pae. 957, 26 L. R. A. (N. S.) 134, 20 Ann. Cas. 124. So that a plaintiff makes out a prima facie case when he shows he was shot by defendant; and the burden is then the defendant to justify or lawfully excuse the shot. Morgan v. Mulhall, supra. Indeed, so strict is the rule that many cases say the defendant must, in order to escape liability, show that the shot was inevitable and that he was utterly without fault. Now, in this case the shot was not, in the strictest sense, inevitable, because defendant could have refrained from shooting, and he admits he fired intentionally. Hence it is said the defendant is liable as a matter of law, and the question of erroneous instructions need not be gone into for that reason. Even if it could be conceded that defendant is liable a matter of law (to which I cannot agree), nevertheless, if error in plaintiff's instructions tends to affect the amount of the verdict to defendant's prejudice, then such error affects the validity of the judgment based thereon, and calls for its reversal and a remanding of the cause.

It is said by Denman, J., in Stanley v. Powell, 1 Q. B. 86, "It would seem that if the shot was inevitable then such fact would be a defense." (Italics mine.) It would be, if by inevitable is meant that which cannot be prevented; but inevitable also means that which cannot be shunned or that which is unavoidable. And, as this is the sense in which the word "inevitable" is used, it would be better to use the word "unavoidable." Hawksley v. Peace, 38 R. I. 544, 550, 96 Atl. 856, L. R. A. 1916D, 1179. But is it universally true that, under any and all circumstances, a defendant must, in order to exonerate himself, show that the act was inevitable, i. e., unavoidable, and that he was utterly with out fault? In all of the cases I have been able to find wherein such rule is announced the discharge of the firearm was in the known presence or vicinity of others, or toward a place where others might likely be. So far as I have been able to find, there is no case announcing such rule where the discharge of the gun was at a secluded place on a man's...

To continue reading

Request your trial
7 cases
  • Flint v. Loew's St. Louis Realty & Amusement Corp.
    • United States
    • United States State Supreme Court of Missouri
    • 15 d3 Março d3 1939
    ...submitting to the jury whether the acts complained of constituted negligence. McLaughlin v. Marlatt, 296 Mo. 656, 246 S.W. 548, affirm. 228 S.W. 873; Alexander v. Hoenshell, S.W.2d 168; Mahaney v. K. C., etc., Ry. Co., 329 Mo. 793, 46 S.W.2d 817; Clark v. Atchison & Eastern Bridge Co., 324 ......
  • Edwards v. Johnson, 453
    • United States
    • United States State Supreme Court of North Carolina
    • 20 d5 Janeiro d5 1967
    ...v. Byrnes, 156 Cal. 636, 105 P. 957, 26 L.R.A.,N.S., 134; Bahel v. Manning, 112 Mich. 24, 70 N.W. 327, 36 L.R.A. 523; McLaughlin v. Marlett (Mo.App.), 228 S.W. 873, affirmed 296 Mo. 656, 246 S.W. 548; Webster v. Seavey, 83 N.H. 60, 138 A. 541, 53 A.L.R. 1202; Magar v. Hammond, 171 N.Y. 377,......
  • Geninazza v. R. U. Leonori Auction & Storage Co.
    • United States
    • United States State Supreme Court of Missouri
    • 22 d2 Maio d2 1923
    ...judgment of the trial court, and transferred the cause to this court, because it deemed its decision to be in conflict with Mc-Laughlin v. Marlatt, 228 S. W. 873, decided by the Kansas City Court of Appeals. It will not be necessary to restate the facts in the case, as the learned opinion o......
  • Flint v. Loew's St. L. Realty & Amus. Corp., 34903.
    • United States
    • United States State Supreme Court of Missouri
    • 15 d3 Março d3 1939
    ...submitting to the jury whether the acts complained of constituted negligence. McLaughlin v. Marlatt, 296 Mo. 656, 246 S.W. 548, affirm. 228 S.W. 873; Alexander v. Hoenshell, 66 S.W. (2d) 168; Mahaney v. K.C., etc., Ry. Co., 329 Mo. 793, 46 S.W. (2d) 817; Clark v. Atchison & Eastern Bridge C......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT