Murphy v. Wilson

• Decision Date: 31 August 1869
• Parties: ISAAC T. MURPHY, Plaintiff in Error, v. PERRY K. WILSON et al., Defendants in Error.
• Court: Missouri Supreme Court

44 Mo. 313

ISAAC T. MURPHY, Plaintiff in Error,

v.PERRY K. WILSON et al., Defendants in Error.

Supreme Court of Missouri.

August Term, 1869.

Error to Fifth District Court.

Hall & Oliver, for plaintiff in error.

I. The plaintiff, in his instruction, sought to recover on a case not set up in his petition. The case made in plaintiff's pleadings and that made in his instructions are totally different. The one charges defendant, and those acting in concert with him, with injuring plaintiff; the other seeks to recover for an injury committed by those acting against defendant, and actually trying to kill and murder him. (1 Van Sand. Pl. 249; Harris v. Han. & St. Jo. R.R., 37 Mo. 308-9.)

II. A defendant is liable for the acts of others only when they act in concert with him, or under and by his authority; and not when they act in self-defense, for the purpose of protecting themselves from the acts of defendant. (1 Chit. Pl. 117; 4 Dana, 464; 11 Allen, 514; 2 Seld. 405; 2 Hill. on Torts, 297, § 10.)

McFerran & Vories, for defendants in error.

I. Defendants were all liable, without regard to who fired the shot that wounded the plaintiff. (Johnson v. Tompkins, 1 Bald. 571; 2 Abb. Nat. Dig. 521, § 3; 1 Cush. 453; 19 Johns. 381, cited in 3 Phil. on Ev. 51, n. 1088; 2 Hill. on Torts, 309-11, § 9 et seq.; 2 Greenl. Ev. 579, § 621; 19 Mo. 421; 22 Mo. 373; 27 Mo. 28; Sedg. on Dam. 82-3; 21 Mo. 492; 38 Mo. 270; 1 Chit. Pl. 426; 2 Hill. on Torts, 316; 6 Duer, 382; 9 U. S. Dig. 414, § 15; 1 Van Sand. Pl. 64-5; 41 Mo. 484; 11 Johns. 285; 9 Johns. 294; 4 Den. 464; 2 Hill. on Torts, 315; 10 B. Monr. 422; 1 Hill. on Torts, 61-78, 90, 97; Steph. Nisi Prius, 210-11.)

II. All persons who wrongfully contribute in any manner to the commission of a trespass are responsible as principals, and each is liable to the extent of the injury done. (41 Mo. 484; 2 Abb. Nat. Dig. 521, § 3.)

III. The plaintiffs in error were rioters, and formed a part of a riotous and nnlawful assemblage, and, as such, are liable for the act of such assemblage. (Gen. Stat. 1866, § 17, p. 812; 2 Whart. Crim. Law, §§ 2472, 2483; Whart. Am. Law of Homicide, 353.)

IV. Where persons are engaged in a reckless or unlawful act, it makes no difference that an injury was not intended to a third person. (2 Steph. Nisi Prius, 1004, 1006; 22 Mo. 379; 38 Mo 27; 10 Wend. 654.)WAGNER, Judge, delivered the opinion of the court.

The petition in this case states that on or about the 29th day of August, 1866, in the county of Caldwell, in the State of Missouri, and in a public street in the town of Breckenridge, the defendants, the Wilsons, together with Reese Tunks, Daniel Stubblefield, Henry Turpin, and others, unlawfully and without leave, and wrongfully, made an assault on the plaintiff; and that Perry K. Wilson, one of the defendants, then and there shot and discharged a pistol loaded with powder and leaden bullets at and against the said plaintiff, and thereby, then and there, with the leaden bullet, struck and wounded the plaintiff; that Humphrey Wilson, Levi Watson, Reese Tunks, Daniel Stubblefield, and Henry Turpin, and other persons unknown to plaintiff, were, at the time of said shooting, present, aiding, abetting, comforting, assisting, and maintaining the said Perry K. in shooting and wounding the plaintiff.

The answer of the defendants denied all the material allegations set out in the petition. The evidence, in substance, shows that a difficulty occurred in the town of Breckenridge at the time mentioned in the petition, between the defendants, the Wilsons, with some others, on one side, and Tunks, Stubblefield, and others, on the other side. There were two engagements, and the parties fought with pistols. In the first encounter the Wilsons drove off their opponents. They then formed in a line across the public street, flourished their pistols, abused the opposite party, and dared them to a renewal of the combat. The other side then rallied, and another fight ensued, which was kept up for several minutes, during which sixty or seventy shots were fired; and in the last contest the plaintiff, whilst peaceably walking along the street, taking no part in the difficulty, was shot and dangerously wounded. The evidence does not disclose, with any certainty, by which side the shot was fired that hit him.

Upon the trial in the Circuit Court the plaintiff asked an instruction, in effect that if the jury believed that at the time mentioned the defendants, or either of them, assaulted Tunks, Stubblefield, and others; and if, from the situation of the street, the number of persons, or other cause, said assault and firing of pistols was of such a character as to endanger or expose to injury persons passing on the street, and the plaintiff was wounded while passing on the street, without any fault on his part; and if the defendants aided and abetted each other in said assault or assaults and firing of pistols, they are all liable, provided the shot that wounded the plaintiff was then and there fired by the defendants, or by some person or persons aiding and abetting the defendants, or returning the fire of defendants, or the fire of those aiding and abetting the defendants, although the wounding of the plaintiff may have been accidental, and not intended by the defendants or either of them, or persons aiding them or returning their fire--they should then find for the plaintiff.

This instruction the court modified by striking out the words italicized, and then gave it. To which action of the court the plaintiff excepted. At the request of the defendants, the court instructed that unless the jury found from the evidence that the defendants, or some one of them, or some other person who was present, with whom defendants were acting in concert, aiding and assisting, shot the plaintiff, they must find for the defendants.

The court further instructed the jury that if they believed from the evidence that the plaintiff was shot by some person engaged in hostile combat against the defendants, and trying to shoot them, or some one of them, they must find for the defendants. To these instructions the plaintiff objected; and, upon his objections being overruled, he took a non-suit, with leave to move to set the same aside; and after an unsuccessful motion to have the same set aside, the cause was removed to the District Court, where the judgment was reversed, and the defendants brought error to this court.

It is contended by the learned counsel for the defendants (plaintiffs in error in this court) that the action of the Circuit Court in striking out that part of the plaintiff's instruction hereinbefore referred to was right, because it sought to recover on a cause of action not made by the pleadings.

This court has heretofore decided that a party can not declare upon one cause of action, and recover judgment upon another and entirely different cause. Notwithstanding the exceeding liberality of the practice act, we do not think it was intended to apply to such a radical and complete change. When the variance between the allegation in the pleading and the proof is not material, the court may direct the facts to be found according to the evidence, or may order an immediate amendment, without costs. (Gen. Stat. 1865, ch. 168, § 2.)

By section 1 of chapter 168, it is declared that no variance between the allegation in the pleading and the proof shall be deemed material unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon its merits. Now, the averment in the petition is that the defendants, together with Tunks, Stubblefield, and others, made the assault, and were all engaged in the commission of the offense, though it is alleged that Perry K. Wilson did the shooting.

It is unquestionably a rule of good pleading, under the code, that “every fact which the plaintiff must prove to enable him to maintain his suit, and which the defendant has a right to controvert in his answer, must be distinctly averred; and every such averment must be understood as meaning what it says, and, consequently, is one to be sustained by evidence which corresponds with its meaning.”

Whether the pleading in this case can be considered good, will depend greatly on the liability of the defendants. If, as counsel for defendants contend, they can only be held liable for their own immediate acts, or the acts of those who acted in concert with them, then the case does not correspond with the averments in the petition. If, however, the position of the plaintiff's counsel be tenable--that the defendants are the instigators and active promoters of the riot, and that they are therefore responsible for all injury that occurred by the act of any of the participants therein--the petition contains a sufficient allegation, and must be held good.

In general, it may be laid down as a correct proposition that every person is liable for the direct, natural, and probable consequence of his own act. If a person puts in motion a dangerous thing, as letting loose a dangerous animal, and leave to hazard what may happen, and mischief ensues, he will be regarded as a trespasser, and held answerable. Every one doing an unlawful act is considered as the doer of all that follows. If two persons mutually engage in mortal combat, or fight a duel in the public streets, and a passer-by is hit, though unintentionally, both will be held guilty as principals. As showing the settled law on the subject, where it is sought to charge an individual for the acts of others, it will be well to refer to a few of the more prominent cases.

The case of Scott v. Sheppard (2 W. Black, 892; 3 Wils. 403; S. C. in Sm. Lead. Cas.) is a strong instance of the responsibility of an individual who was the first, though not the immediate, agent in producing an injury. Sheppard threw a lighted squib composed of gunpowder into a market-house, where a large concourse of people were assembled. It fell upon the standing of Yates, and, to...