Morgan v. Durfee

CourtUnited States State Supreme Court of Missouri
Writing for the CourtSHERWOOD
Citation69 Mo. 469
PartiesMORGAN v. DURFEE, Appellant.
Decision Date30 April 1879

69 Mo. 469

MORGAN
v.
DURFEE, Appellant.

Supreme Court of Missouri.

April Term, 1879.


[69 Mo. 470]

Appeal from Atchison Circuit Court.--HON. H. S. KELLEY, Judge.

This was an action under the statute concerning damages, (Wag. Stat., p. 520,) sections 2 and 3 of which give the minor child a right of action for the killing of his parent. Section 4 provides that the jury may give such damages as they may deem fair and just, not exceeding $5,000, with reference to the necessary injury resulting from such death, and also having regard to the mitigating or aggravating circumstances attending the act which caused the death. At the trial evidence was given tending to show that the defendant was worth thirty or forty thousand dollars. The court gave the following instructions for the plaintiff:

1. If you find from the evidence the defendant wrongfully struck the said Pressley G. Morgan on the head with a notarial seal, and knocked him upon the brick pavement, or by force of the lick he fell upon said pavement, and the blow or fall gave him a wound or wounds upon the head which caused his death, you should find for the plaintiff, and assess his damages as you may believe to be right and proper, not exceeding $5,000, with reference to the necessary injury resulting from the death of said Morgan to the said minor, the said Alonzo P. Morgan; also having

[69 Mo. 471]

reference to the aggravating or mitigating circumstances attending the giving of the blow, that is to say: If you find that the blow was not only wrongfully given, but was wantonly and cruelly inflicted in a spirit of hatred or illwill, and without reasonable provocation, you may allow such sum as you may deem proper under all the circumstances, including punitive or exemplary damages, but if the act of the defendant was wrongful, yet if it was attended with circumstances of provocation and insult, this may be considered in mitigation of damages.

2. If you find from the evidence that the defendant struck the said Pressley G. Morgan on the head with a notarial seal, a dangerous weapon, and thereby knocked him down, and the blow, or the fall, or both combined, caused his death, it devolves upon the defendant to show to the satisfaction of the jury, by a preponderance of the evidence, that he was justifiable in giving the blow in his own proper self-defense; unless such justification appears from the evidence offered by the plaintiff, it must appear from all the evidence in the case to the satisfaction of the jury that the blow was justifiable on the ground of self-defense. If this so appears, you should find for the defendant.

3. The defendant had a right to order the deceased to leave his office and go out of it, and it was the duty of the deceased to comply with the request or order, and if he refused to do so, the defendant had a right to lay his hands upon him and put him out by force, and if the deceased resisted the defendant by the use of force and violence to his person, either actual or threatened, the defendant had the right to oppose force with force, using such force and measures only as might be reasonably necessary to eject the deceased from his office, but the defendant could have no right to use a deadly weapon and strike the deceased with a dangerous or deadly weapon upon a vital part, for the purpose of forcing or driving the deceased out of his office. But if in attempting to put the deceased

[69 Mo. 472]

out, he, the deceased, resisted the defendant by violence and by assaulting him by taking him by the throat, and the defendant did believe and had good reason to believe that the deceased was about to do him some great personal injury, the defendant had the right to defend himself against such threatened danger by the use of any weapon, even to the extent of taking his life or inflicting an injury that might result in death. It is not essential to this defense that there should be actual or real danger, or that the peril of great bodily harm should be really imminent. If from all the circumstances actually attending the situation at the time of the blow given by the defendant, there was reasonable ground to believe that the deceased designed to do the defendant some great personal injury at the time, and the defendant struck him with the seal to avert such injury, and not in a spirit of malice or revenge, he was justifiable, although there may have been no design on the part of the deceased to do the defendant any serious injury nor danger that it would then be done. The defendant had the right to act upon the appearances, in deciding upon the situation, and whether the defendant had good reason to apprehend real danger at the time. The general reputation of the deceased in the neighborhood as to being a violent, turbulent, dangerous man, or a quiet, peaceable, one, as shown by the evidence, as also any threats he may have made shortly before the difficulty, may be considered.

The court refused an instruction offered by the defendant to the effect that on the evidence the plaintiff was not entitled to recover, and also the following, among others:

7. If the jury believe from the evidence that Pressley G. Morgan went into the law office of defendant and used loud and offensive language, and the defendant thereupon requested said Morgan to leave his office, and that said Morgan refused so to do, but continued to use loud and offensive language, and thereupon defendant again requested said Morgan to leave his office, and pushed him with his

[69 Mo. 473]

left hand, it was Morgan's duty to comply with said request; and if the jury believe from the evidence that said Morgan, instead of leaving the office, assaulted defendant and laid hold of his person in a violent and threatening manner, and that defendant, in defense of his person and the possession of his office, used such force as was reasonably necessary under the circumstances, then said Morgan, if death had not ensued, would not have been entitled to maintain an action and recover damages on account of the injuries so inflicted by said defendant, and if said Morgan could not have maintained said action, neither can the plaintiff, and the jury will find for the defendant.

Other facts are stated in the opinion.

Willard P. Hall for appellant.

1. The court erred in admitting evidence of defendant's pecuniary standing. (a) The question is not what defendant is able to pay, but what plaintiff ought to recover. 2 Greenl. Ev., § 269; Conant v. Griffin, 48 Ill. 410. (b) Such evidence is admissible only in cases where exemplary damages may be given. 2 Greenl. Ev., § 269; Buckley v. Knapp, 48 Mo. 152. This is not such a case, because there was no willfulness, malice or wantonness on the part of defendant. Perkins v. M., K. & T. Ry. Co., 55 Mo. 213. (c) The action is brought under the damage act, section 4 of which allows the jury to consider the aggravating circumstances. Defendant's wealth is not one of these. 2. Plaintiff ought to have been non-suited. Hinchcliffe's case, 1 Lewin C. C. 161; Cases Self-Defense, 125, 126; Gen. Stat., 778, § 5; Wag. Stat., § 5, 446. 3. The first instruction given for plaintiff was wrong, because there was no evidence that defendant acted wantonly, cruelly and in a spirit of hatred or ill-will. Whalen v. Centenary Church, 62 Mo. 329. 4. Plaintiff's second instruction should have been refused. Whether the fall of Morgan upon the pavement was accidental, or whether it was...

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39 practice notes
  • Downs v. Horton, No. 2409.
    • United States
    • Court of Appeal of Missouri (US)
    • February 25, 1919
    ...S. W. 157; Rubeottom v. Western Union Tel. Co., 194 Mo. App. 234, 186 S. W. 749; Bank v. Hainline, 67 Mo. App. 483, 487; Morgan v. Durfee, 69 Mo. 469, 475, 33 Am. Rep. 508. Many others might be cited. The latest case by the Supreme Court is Guthrie v. Holmes, 272 Mo. 215, 233, 198 S. W. 854......
  • State ex rel. Donelon v. Deuser, No. 36070.
    • United States
    • United States State Supreme Court of Missouri
    • December 14, 1939
    ...was, therefore, proper. Boyd v. Mo. Pac. Ry. Co., 236 Mo. 54, 139 S.W. 561; Barth v. K.C. Elevated Ry. Co., 142 Mo. 535; Morgan v. Durfee, 69 Mo. 469; State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722; Secs. 766, 767, R.S. 1929. (2) The court erred in giving and re......
  • State v. Brinkley, No. 39557.
    • United States
    • Missouri Supreme Court
    • March 11, 1946
    ...State v. Shiles, 188 S.W. (2d) 7; State v. Matthews, 148 Mo. 185, 49 S.W. 1085; State v. Reed, 154 Mo. 122, 55 S.W. 278; Morgan v. Durfee, 69 Mo. 469. (14) Preserving peace against intruders and roisterers. State v. Raper, 141 Mo. 327, 42 S.W. 935. (15) In resistance to commission of a felo......
  • State v. Sorrentino, 1181
    • United States
    • United States State Supreme Court of Wyoming
    • March 25, 1924
    ...43, 188 P. 947), 192 P. 640, 193 P. 434 a root house (People vs. Coughlin, 67 Mich. 466, 473, 35 N.W. 72), an office ( Morgan vs. Durfee, 69 Mo. 469), 33 Am. Rep. 508, a room rented and occupied as a bedroom (Harris vs. State, 96 Ala. 24, 11 So. 255), and other like places, have been held p......
  • Request a trial to view additional results
39 cases
  • Downs v. Horton, No. 2409.
    • United States
    • Court of Appeal of Missouri (US)
    • February 25, 1919
    ...S. W. 157; Rubeottom v. Western Union Tel. Co., 194 Mo. App. 234, 186 S. W. 749; Bank v. Hainline, 67 Mo. App. 483, 487; Morgan v. Durfee, 69 Mo. 469, 475, 33 Am. Rep. 508. Many others might be cited. The latest case by the Supreme Court is Guthrie v. Holmes, 272 Mo. 215, 233, 198 S. W. 854......
  • State ex rel. Donelon v. Deuser, No. 36070.
    • United States
    • United States State Supreme Court of Missouri
    • December 14, 1939
    ...was, therefore, proper. Boyd v. Mo. Pac. Ry. Co., 236 Mo. 54, 139 S.W. 561; Barth v. K.C. Elevated Ry. Co., 142 Mo. 535; Morgan v. Durfee, 69 Mo. 469; State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722; Secs. 766, 767, R.S. 1929. (2) The court erred in giving and re......
  • State v. Brinkley, No. 39557.
    • United States
    • Missouri Supreme Court
    • March 11, 1946
    ...State v. Shiles, 188 S.W. (2d) 7; State v. Matthews, 148 Mo. 185, 49 S.W. 1085; State v. Reed, 154 Mo. 122, 55 S.W. 278; Morgan v. Durfee, 69 Mo. 469. (14) Preserving peace against intruders and roisterers. State v. Raper, 141 Mo. 327, 42 S.W. 935. (15) In resistance to commission of a felo......
  • State v. Sorrentino, 1181
    • United States
    • United States State Supreme Court of Wyoming
    • March 25, 1924
    ...43, 188 P. 947), 192 P. 640, 193 P. 434 a root house (People vs. Coughlin, 67 Mich. 466, 473, 35 N.W. 72), an office ( Morgan vs. Durfee, 69 Mo. 469), 33 Am. Rep. 508, a room rented and occupied as a bedroom (Harris vs. State, 96 Ala. 24, 11 So. 255), and other like places, have been held p......
  • Request a trial to view additional results

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