Morgan v. Mulhall

• Decision Date: 25 November 1908
• Citation: 214 Mo. 451,114 S.W. 4
• Parties: MORGAN v. MULHALL.
• Court: Missouri Supreme Court

114 S.W. 4

214 Mo. 451

MORGAN v. MULHALL.

Supreme Court of Missouri, Division No. 1.

November 25, 1908.

1. PLEADING (§ 433)—AIDER BY VERDICT— PETITION.

A petition charging negligence only generally, in the absence of a motion to make more certain and specific or of an objection to its sufficiency prior to verdict, is good after verdict.

2. WEAPONS (§ 18)—NEGLIGENT SHOOTING— ACTIONS—SUFFICIENCY OF PETITION.

A petition, in an action for negligent shooting, alleging that on a specified day, at a specified place, defendant, by shooting into a crowd of people, negligently shot plaintiff with a pistol, inflicting specified injuries, stated a good cause of action.

3. WEAPONS (§ 18)—NEGLIGENT SHOOTING— ACTIONS—SUFFICIENCY OF PETITION.

The petition sufficiently averred that defendant negligently and wrongfully shot into a crowd of people.

4. WEAPONS (§ 18)—INJURIES FROM ILLEGAL USE—LIABILITY—PRIMA FACIE CASE.

In an action for injuries caused by an unlawful assault and shooting, plaintiff is prima facie entitled to a verdict upon proof that he was shot by defendant, without showing an intention to commit the injury or that defendant was in fault; and it then devolves upon defendant to show that the shooting occurred without his fault, or to show mitigating facts.

5. WEAPONS (§ 18)—INJURY FROM NEGLIGENT SHOOTING—ACTION—EVIDENCE.

Evidence, in an action for negligent shooting, held to show that a pistol shot which injured plaintiff was fired "into a crowd."

6. WEAPONS (§ 18)—FIRING INTO CROWD— "CROWD."

Two or three persons would constitute a "crowd," within an averment in a petition, in an action for negligent shooting, that a pistol was fired "into a crowd."

7. TRIAL (§ 255)—INSTRUCTIONS—REQUESTS— NECESSITY.

Mere nondirection, partial or total, in civil cases, is not reversible error, unless specific charges, good in law and applicable to the evidence, are requested and refused, especially in view of Rev. St. 1899, § 748 (Ann. St. 1906, p. 733), providing that either party may ask instructions, and the court may charge of its own motion, which is permissive and not mandatory.

Appeal from St. Louis Circuit Court; O'Neil Ryan, Judge.

Personal injury action by Ernest Morgan by his next friend, Joseph Morgan, against Zach Mulhall. Judgment for plaintiff, and defendant appeals. Affirmed.

Thos. J. Rowe, Thos. J. Rowe, Jr., and Henry Rowe, for appellant. Thos. F. Galt, for respondent.

LAMM, J.

Suing Mulhall, Ernest Morgan by his next friend asked $20,000 damages, grounding his right of action on a negligent shooting and wounding. At a trial with the aid of a jury, he got a verdict of $5,000. From a judgment entered, defendant appeals.

The petition follows: "The plaintiff for his cause of action showeth to the court that on the 24th day of May, 1905, upon the petition of said Ernest Morgan, the said circuit court did appoint Joseph Morgan as his next friend to commence and prosecute this suit, and said Joseph Morgan has consented in writing to act as such next best friend for said purpose. And the plaintiff further showeth to the court that on the 18th day of June, 1904, in said city of St. Louis, and on the grounds of the Louisiana Purchase Exposition Company, the defendant, by shooting into a crowd of people negligently, shot the plaintiff, Ernest Morgan, with a pistol; that by said shooting the bowel of plaintiff's abdomen was perforated in front and rear, and plaintiff's hip socket was smashed, and the head of his thigh bone destroyed; that it was necessary for the surgeon in treating said wounds to cut open plaintiff's abdomen and close the bowel where perforated, and thereafter to cut off and remove the head of the said thigh bone; and as a further result of said injuries Bright's disease was developed in plaintiff; that plaintiff's life was saved by the surgeon, Dr. L. H. Laidley, but plaintiff suffered on account of said injuries most excruciating pain and anguish of body and mind, his constitution has been permanently weakened, his leg permanently shortened, and he now suffers and will continue to suffer great bodily and mental pain and anguish all to plaintiff's damage in the sum of $20,000, for which amount and his costs he asks judgment against the defendant."

The answer was a general denial.

The court, on plaintiff's prayer, gave two instructions, viz.: (1) "The court instructs the jury that, if you find for the plaintiff, you will, in assessing the damages, award him such sum as you believe from the evidence will reasonably compensate for the physical pain and mental anguish, if any, you believe he has suffered occasioned by said injuries, and the physical pain and mental anguish, if any, you believe from the evidence will result to the plaintiff from said injuries in the future." (2) "The court instructs the jury that you are the sole judges of the credibility of the witnesses and the weight to be given to their evidence. And in passing upon the credibility of a witness, the jury are at liberty to take into consideration his or her manner upon the witness stand; the interest he or she may manifest, if any, in the case; the reasonableness or unreasonableness of his or her testimony as compared with the other testimony in the case. And the court instructs the jury that, if you find and believe that any witness willfully testified falsely to any material facts, you are at liberty to reject the whole or any part of such witness' testimony." The court of its own motion instructed the jury how to return their verdict if nine concurred, and how if there was a unanimous verdict. The defendant asked no instructions.

It appears that plaintiff, in no wise to blame, on the date and at the place alleged in his petition, was wounded by a pistol bullet. That he received the grievous hurts alleged in his petition was shown, and not challenged by any proof. As no question is made over the amount of the verdict, the details become unimportant on appeal. There was substantial evidence tending to show he was hit in the abdomen by a bullet from a pistol fired by defendant. That defendant had a pistol and fired it more than once is not denied by him or his witnesses. They content themselves with putting in evidence to the effect that in a scuffle and mêlée other shots were fired by other parties, and tending to show it was not a bullet from Mulhall's firearm that struck Morgan. But in this court the cause is submitted by defendant's counsel on the theory (to use their own words) that: "On June 18, 1904, on the grounds of the Louisiana Purchase Exposition Company, defendant shot at Frank Reed, a dangerous and desperate character, missed him, and the bullet wounded plaintiff in the abdomen." With this frank admission in the case, it is waste of time to state the evidence on the issue as to whether defendant's bullet or another's did the mischief. The jury settled that, and defendant bows to the verdict.

As said, defendant put in testimony tending to sustain a theory of self-defense—i. e., that he was feloniously set upon by one Reed, a desperado, and in battling for his life, by innocent slip and misadventure, shot wide of his mark and (by chance medley) hit Morgan, a nonparticipating bystander. That issue was threshed out at the trial, and the jury found against the theory of self-defense and misadventure. In the face of this finding, we do not read counsel's brief as insisting there was no substantial testimony on that score on which the verdict could stand. Therefore, it is not incumbent on us to emblazon on judicial pages (and thus embalm) the causes leading up to the rowdy war and its bloody incidents. The prying mind may find them once spread of record in State v. Mulhall, 199 Mo. 202, 97 S. W. 583, 7 L. R. A. (N. S.) 630—once is enough.

Any other facts essential to understand and determine the case will appear in connection with a consideration of the several assignments of error, which are: (1) "The petition fails to state facts sufficient to constitute a cause of action." (2) "There is no allegation in the petition that defendant wrongfully or carelessly or negligently shot into a crowd of people." (3) "There is a fatal variance between the allegations of the petition and the proof. There is no evidence that plaintiff shot into a crowd of people." (4) "Instruction No. 1, given on behalf of the plaintiff, merely indicated the measure of damages in the event of a verdict for plaintiff, but did not state the issues nor specify the facts which must be found to warrant a verdict for him."

1. The first two assignments of error may be considered together.

(a) Does the petition state a cause of action? We think so. It is uncommonly laconic and crisp in its charging part, but well charges that plaintiff was negligently shot by defendant with a pistol, and that averment charges an actionable wrong. At the very worst, the most that can be said against it is that it is a general charge of negligence. On that view, absent a motion to make more certain and specific, absent any objection to its sufficiency prior to verdict (as here), the petition must be held good after a verdict. So runs the case and the general law. Schneider v. R. R., 75 Mo. 295; Mack v. R. R., 77 Mo. 232; Dolan v. Moberly, 17 Mo. App. 436; Dieter v. Zbaren, 81 Mo. App. 612; Le May v. R. R., 105 Mo. 361, 16 S. W. 1049; Conrad v. De Moncourt, 138 Mo., loc. cit. 325, 39 S. W. 805; Rinard v. R. R., 164 Mo., loc. cit. 285, 64 S. W. 124 et seq.; 29 Cyc. 570 et seq.; 6 Thompson's Negligence, § 7447. But the averment is more than a general charge of negligence. The character of the negligence is defined. If we look to the reason of the thing or to the justice of the concrete case, then it is sure defendant suffered no surprise or other wrong by the condensed phrasing of the petition. This becomes clear because he was thereby informed of the case he had to meet—of the ultimate fact complained of, viz., a negligent shooting, with time, place, and...