McMannus v. Lee

• Decision Date: 31 January 1869
• Citation: 43 Mo. 206
• Parties: ELI MCMANNUS, JR., Plaintiff in Error, v. PRIOR LEE and TILMAN LEE, Defendants in Error.
• Court: Missouri Supreme Court

43 Mo. 206

ELI MCMANNUS, JR., Plaintiff in Error,

v.PRIOR LEE and TILMAN LEE, Defendants in Error.

Supreme Court of Missouri.

January Term, 1869.

Error to Third District Court.

The facts sufficiently appear in the opinion of the court.

E. L. Edwards, for plaintiff in error.

I. In this case it is not necessary, in order to entitle the plaintiff to a verdict, to allege or prove a conspiracy. If the goods of the plaintiff were wrongfully taken, and the defendants were present when they were so taken, and did not dissent from or oppose the taking of the goods, it was competent for the jury to infer that they thereby assented to the taking of the same, lent countenance to the taking thereof, and were thereby aiding and abetting the same. (2 Hill. on Torts, 3d ed., ch. 33, § 9, pp. 292-3; Allred v. Bray, 41 Mo. 487; Freidenheit v. Edmunson et al., 36 Mo. 226.)

II. There is no error in the instruction given by the Circuit Court on the part of the plaintiff.

III. The instruction asked by the defendants was properly refused. It proposed to take the whole case from the jury, and is clearly against the law, as settled by authorities above cited.T. A. Sherwood, and James F. Hardin, for defendants in error.

I. The Circuit Court clearly erred in giving the instruction asked by plaintiff. The court assumed a conspiracy and the designs thereof. (1 Greenl. Ev. § 111; 8 Mo. 710; 28 Mo. 491; 34 Mo. 98, 460; 35 Mo. 453; 37 Mo. 240.)

II. The Circuit Court erred in refusing the instruction asked by defendants.

WAGNER, Judge, delivered the opinion of the court.

Plaintiff commenced his action of trespass against the defendants in the Circuit Court of Dade county, where, upon a trial, he had a verdict and judgment in his favor, which, on appeal to the District Court, was reversed, and the case is now brought here for review on writ of error.

The alleged trespass set out in the petition was the taking from the plaintiff of a mare, saddle, and bridle. The facts disclosed by the record are briefly these: On the 2d day of August, 1862, a band of armed men, to the number of three or four hundred, came into the town of Greenfield, in Dade county, and drove the citizens into the court-house. The defendants were with them, armed, and acting just like the rest. Some of the band took the plaintiff's mare, saddle, and bridle; but there was no direct proof that the defendants, or either of them, either took the property, directed the taking, or approved of the same, or at any time had it in their possession.

Upon this evidence the court instructed the jury, for the plaintiff, that if they believed from the evidence that a body of armed men came into the town of Greenfield, Mo., about the 2d day of August, 1862, and arrested and took the citizens into the courthouse, and that the defendants were around and present, acting in concert with the other armed men, and that some of the said band of armed men took the plaintiff's mare, saddle, and bridle, they should find for the plaintiff. The court refused an instruction asked for by defendants, to the effect that, admitting the evidence to be true, the plaintiff was not entitled to recover, because there was no evidence of a conspiracy, such as would make the defendants liable for the acts of other persons. The giving and refusing of instructions constitute the only error relied upon. The instruction prayed for by the defendants asked the court to assume and declare that there was no evidence to support the plaintiff's action. This, I think, was erroneous, and therefore properly refused. In the case of the State v. Daubert, 42 Mo. 239, the rule in regard to the declarations and acts of co-conspirators, as affecting each other, was commented upon, but it was declared that the principle was not limited or restricted to criminal cases, but was a general one, applicable to a variety of cases, in all the...