Perkins v. Wilcox
| Decision Date | 19 June 1922 |
| Citation | 242 S.W. 974,294 Mo. 700 |
| Parties | R. J. PERKINS v. B. F. WILCOX, Appellant |
| Court | Missouri Supreme Court |
Appeal from Christian Circuit Court. -- Hon. Fred Stewart, Judge.
Reversed.
W. M Bowker, John S. Haymes, L. T. Wilson and G. P. Hays for appellant.
(1) The wife, suing for the wrongful death of her husband, cannot recover to exceed ten thousand dollars for both compensatory and punitive damages. Secs. 4218, 4219, R. S. 1919. (2) Section 4218 and Section 4219, Revised Statutes 1919, are in derogation of the common law and must be strictly construed. Troll v. Gas Light Co., 182 Mo.App. 600; Jackson v. Ry. Co., 87 Mo. 422; Bates v. Sylvester, 205 Mo. 493. (3) Section 4218 does not authorize a recovery except where the wrongful act caused the death -- not where it contributed to or hastened the death of the decedent. Jackson v. Ry. Co., 87 Mo. 422. (4) The courts hold that, unless the petition charges the acts and injuries to decedent to have been wanton, willful or malicious, the matter of punitive damages cannot be submitted to the jury. State ex rel. Dunham v. Ellison, 278 Mo. 649; Tavis v. Bush, 280 Mo. 383. (5) Experts are not permitted to give testimony on the matters directly in issue. Fausette v. Grimm, 193 Mo.App. 585; Henson v Kansas City, 277 Mo. 443; Mukel v. Ry Ass'n., 205 Mo.App. 484. (6) The hypothetical question must be based on the evidence in the case. Ridenour v. Mining Co., 164 Mo.App. 576. (7) Constable Evans was merely performing his official duty in calling upon W. C. Perkins with the execution when, it is alleged, the injury took place. (a) When appellant recovered judgment for the possession of his property, damages and costs, his right to execution followed, and when it was issued the constable was bound to obey it and to use reasonable diligence in searching for property. Fountaine v. Hudson, 93 Mo. 70; Burton v. Sweaney, 4 Mo. 3; Fisher v. Gordon, 8 Mo. 390. (b) With the discharge of the constable's duties, the elder Perkins had no right to interfere. R. S. 1909, sec. 4364; State v Dickerson, 24 Mo. 368. (c) Undoubtedly the constable was not required to silently and tamely submit to the acts of J. M. Perkins tending to defeat his lawful purpose, for the powers of an officer are equal to his duties. Nichols v. Reyburn, 55 Mo.App. 7; State ex rel. v. Gates, 67 Mo. 143; 3 Greenleaf on Ev. (14 Ed.) sec. 65. (d) Respondent's own evidence showed that at the time Evans shot the elder Perkins, and at the time appellant called to the constable to shoot (whether it was before or after the shot was fired), both had good reason to believe that action was necessary in defense of one or both. The one, therefore, had the right to act to defend himself, and the other to call for action in defense of himself or another, for what one may do for himself, he may do for another. State v. Reed, 137 Mo. 125; State v. Totman, 80 Mo.App. 125; Brouster v. Fox. 117 Mo.App. 711. (e) Since, for the two reasons, nothing more was done than the law permits, no legal liability resulted from the doing. Holland v. Depriest, 65 Mo.App. 333; Mining Co. v. Mining Co., 50 Mo.App. 534; Charles v. Rankin, 22 Mo. 566; Nations v. Pulse, 175 Mo. 94; Bishop on Non-Contract Law, sec. 202. (8) An injured party cannot add to injuries received at the hands of another, and recover for the increase; and even if the deceased was injured by an act of appellant, and it was aggravated by an exposure to which he subjected himself, no recovery can be had therefor. Francis v. Transit Co., 5 Mo.App. 7; Fullerton v. Fordyce, 144 Mo. 532; Railroad v. McGrew, 104 Mo. 291; Detrich v. Railroad, 89 Mo.App. 40. (9) A verdict based upon conjecture and speculation will not be permitted to stand; and as appellant's own evidence shows that the death of her husband may have resulted from one of several things and does not show from which it did result, and for some of the causes, at least, appellant would not be liable, there can be no recovery. Demaet v. Storage Co., 121 Mo.App. 105; Biddlecom v. Nelson Grain Co., 178 S.W. 750; Warner v. Railroad, 178 Mo. 134; Root v. Railroad, 195 Mo. 367; Smart v. Kansas City, 91 Mo.App. 592. (10) Where there has been no bodily injury nor trespass there can be no recovery for injuries caused by fright, shock, agitation or mental anguish. Strange v. Railroad, 61 Mo.App. 586; Trigg v. Ry. Co., 74 Mo. 147; Connell v. Western Union, 116 Mo. 34; McCardle v. Geo. Peck D. G. Co., 271 Mo. 111; Hunter Bros. Milling Co. v. Stanley, 132 Mo.App. 308; Smith v. Pullman Co., 138 Mo.App. 238; McGee v. Van Over, 147 S.W. 742; Chesepeak Ry. Co. v. Bobinett, 152 S.W. 976; Leahman v. Brooklyn, 47 Hun, 355; Spade v. Ry. Co., 168 Mass. 285, 38 L. R. A. 512; Braun v. Cravens, 175 Ill. 401; Ewing v. Ry. Co., 14 L. R. A. 666; Sanderson v. Ry. Co., 60 L. R. A. 403; Bell v. Great Northern Ry., 26 L. R. A. 428; Houston v. Freemanburg, 212 Pa. 548; Hutchinson v. Stern, 101 N.Y.S. 145.
Moore, Barrett & Moore, L. Cunningham, Hamlin & Hamlin and C. W. Hamlin for respondent.
(1) This suit was undoubtedly based on what is now Sections 4218 and 4219, Revised Statutes 1919, and plaintiff is therefore limited by that law to $ 10,000 as a maximum amount which she can recover. In this case the petition asked for $ 10,000 compensatory and $ 15,000 punitive damages. Defendant answered and went to trial -- raising no question about the amount sued for, and now on appeal it has been discovered that the petition not only overshot the mark, but that the verdict of the jury was for twice the maximum that plaintiff was entitled to recover under the statute. Since the judgment has been suspended by this appeal and the verdict being in excess of the limit under the statute, this respondent, if permitted to do so, will willingly and gladly enter a remittitur of an amount sufficient to bring the verdict and the judgment down to within the limits of the Damage Act. (a) This can be done. Higgs v. Hunt, 75 Mo. 106; Cook v. Globe Printing Co., 227 Mo. 471, 546; Burdict v. Railway Co., 123 Mo. 242; Reynolds v Transit Company, 189 Mo. 423. (b) The judgment should be affirmed upon remittitur being made. Railroad v. Herbert, 116 U.S. 642; Clifton v. Ry. Co., 232 Mo. 708; Sperry v. Hurd, 267 Mo. 628. (c) Where the verdict is enlarged by an ascertainable amount through error, the erroneous amount may be eliminated by remittitur. Howell v. Jackson County, 262 Mo. 403, 420. (2) Where different theories as to the cause of death are presented in a case, it is for the jury to say which is the correct one and the jury having spoken on this point this court will not interfere. MacDonald v. Street Railway, 219 Mo. 468, 483; Seckinger v. Mfg. Co., 129 Mo. 590; Fetter v. Casualty Co., 174 Mo. 256; Sharpe v. Railway, 213 Mo. 528. (3) One who is present aiding, abetting and encouraging either by words, looks, signs or other acts, another in doing something that causes or directly contributes to the death of that other, is liable as principal. Gray v. McDonald, 104 Mo. 303; Brown v. Barr, 184 Mo.App. 451. (4) If the conduct of a defendant is found to be a direct or contributing cause of the death of another by being the cause of exposing that other to the weather under such conditions as to bring on or aggravate a disease which terminated fatally he is liable in damages. Ehrgott v. New York City, 96 N.Y. 264; Milwaukee Railroad v. Kellog, 94 U.S. 469; 1 Sedgwick on Damages (9 Ed.) sec. 122. (5) If the conduct of appellant was such as to cause the deceased through fear and terror to go out into the weather improperly wrapped while suffering from sickness, in other words in such a physical condition as to cause him to grow worse and eventually die, the conduct of defendant amounts to a physical injury to the deceased, and he is therefore liable for the result of said injury. Mollman v. Electric Co., 227 S.W. 264; Bonillion v. Gas Co., 148 Mo.App. 462; Lesch v. Railroad, 106 N.W. 955. (6) Where a physical injury inflicted or caused to be inflicted by the defendant produces a disease or aggravates an existing one which proves fatal, defendant is liable in damages. Equitable Life Assurance Society v. Lester, 110 S.W. 499; Breshears v. Pa. Traction Co., 36 A. 914. (7) Where a physical injury stimulates or aggravates an existing disease which proves fatal the party responsible for the injury may be held liable in damages. St. Louis Trust Co. v. Murmann, 90 Mo.App. 560; Neff v. City of Cameron, 213 Mo. 350, 363; Brown v. Railway, 66 Mo. 588, 597; Smart v. Kansas City, 208 Mo. 162, 206; Hammond v. Packing Co., 107 Mo.App. 542; Deleplain v. Kansas City, 109 Mo.App. 107; West v. Railway, 187 Mo. 351; Railroad v. Hecht, 115 Ind. 443; Strode v. St. L. Transit Co., 197 Mo. 616, 628. (8) Simply because an officer has a lawful writ in his pocket does not render him immune from his unlawful and unnecessary acts. An officer must do his duty in a lawful manner. Healey v. Range Co., 161 Mo.App. 483; State v. Meyers, 174 Mo. 352. Even if the constable had the altercation and did the shooting yet if the appellant was present participating in the melee by encouraging, prompting, inciting and advising said constable to shoot the elder Perkins the appellant would be liable as a principal. McManus v. Lee, 43 Mo. 206; Gray v. McDonald, 104 Mo. 303; Brown v. Barr, 184 Mo.App. 451; Cooper v. Johnson, 81 Mo. 487. Where the result of the defendant's conduct was such as to shorten the victim's life, either by resulting in a fatal disease, or by general debilitating effect, heavy damages are recoverable. 4 Sedgwick on Damages (9 Ed.) sec. 1362; San Antonio Trac. Co. v. Probandt, 125 S.W. 931; Cooper v. St. Paul Ry., 56 N.W. 42. The question as to what caused the pneumonia and the consequent formation of pus in the plural cavity...
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