Pritchard v. Hewitt

• Decision Date: 16 May 1887
• Citation: 4 S.W. 437,91 Mo. 547
• Parties: Pritchard, Plaintiff in Error, v. Hewitt
• Court: Missouri Supreme Court

4 S.W. 437

91 Mo. 547

Pritchard, Plaintiff in Error, v. Hewitt

Supreme Court of Missouri

May 16, 1887

Appeal from DeKalb Circuit Court. -- Hon. J. P. Grubb, Judge.

Affirmed.

S. G Loring for plaintiff in error.

(1) The court erred in refusing the seventh instruction prayed for by the plaintiff. At common law, any person whatever, if an affray be made to the breach of the peace, may, without a warrant from a magistrate, restrain any of the offenders in order to preserve the peace. Phillip v. Trull, 11 Johns. 486; Baynes v. Brewster, 2 Q. B. 376; Price v. Suley, 10 A. & Tin. 39. (2) The court erred in refusing the eighth instruction asked by plaintiff. State v. Peak, 85 Mo. 193; State v. Brown, 64 Mo. 367; State v. Underwood, 57 Mo. 40. (3) The court also erred in giving the instruction on the part of the defendant. State v. Clifford, 5 Crim. Law Mag. 246; Wharton's C. L. [5 Ed.] secs. 10, 20, 21, 22, 26. (4) The motion for a new trial should have been sustained; plaintiff under the law and facts, was entitled to substantial damages.

Ramey & Brown for defendant in error.

(1) Under the pleadings and evidence it was proper for the court to submit to the jury the defence set up in defendant's answer. Son assault demense, or that it was plaintiff's own wrong that occasioned the injury, has always been a good defence. 3 Black. Com. 120; 3 Broom & Had. 129; State v Stockton, 61 Mo. 382. (2) And it was for the jury to say whether the defendant, from the conduct of the plaintiff and all the circumstances surrounding him, had good reason to believe that plaintiff was about to assault him, and that he was in immediate danger of great bodily harm from such assault, and whether he used any more force in repelling the impending assault than was necessary. State v. Stockton, 3 Mo.App. 501; 5 Phillips on Evid. 204; Gallagher v. State, 3 Minn. 270. (3) The seventh instruction asked by plaintiff was properly refused. It assumed that the defendant shot the plaintiff solely on account of plaintiff's holding him. Maxwell v. Railroad, 85 Mo. 95; State v. Wheeler, 79 Mo. 366. (4) The defendant's instruction properly submitted the law of self-defence to the jury. Morris v. Platt, 32 Conn. 75; State v. Stockton, 3 Mo.App. 501; 2 Archbold's Crim. Prac. and Plead. p. 282, and note, and cases cited; 1 Russell on Crimes, 758; Ros. Crim. Evid. 290; State v. Gallagher, supra. (5) The motion for a new trial was properly overruled. It was the province of the jury to assess the damages that plaintiff should have, and although they did not justify the defendant fully in shooting, they had the right, and doubtless did consider all the facts and circumstances attending his shooting in estimating the damages, and the court, who had seen and heard all the witnesses, did not think the finding improper. Gregory v. Chambers, 78 Mo. 294.

OPINION

Brace, J.

This was an action commenced by the plaintiff in the circuit court of DeKalb county, to recover damages of the defendant for maliciously assaulting, shooting, and wounding the plaintiff, which resulted in a verdict for the plaintiff for one dollar. The defence was son assault demesne. After an unsuccessful effort for a new trial, the plaintiff, having saved his exceptions, brings the case to this court by writ of error, and assigns for error: (1) That the court refused to give the instructions numbers seven and eight for plaintiff; (2) that the court gave the instructions asked for the defendant; (3) that the court overruled plaintiff's motion for a new trial.

The refused instructions numbered seven and eight, asked for by the plaintiff, and the instruction given by the court for the defendant, were all upon the issue joined upon defendant's plea, that plaintiff first assaulted him, and that in resisting that assault, he used no more force than was necessary to resist such assault, and protect himself from great personal injury, and as that issue was found for the plaintiff by the jury, no harm resulted to him from the action of the court, in that behalf, even though it be conceded that plaintiff's refused instructions were correct, and that the one given for the defendant is obnoxious to the criticism placed upon it. The action of the court in giving the one and in refusing the others would, therefore, be no ground for reversal. Gregory v. Chambers, 78 Mo. 294; Morris v. Railroad, 79 Mo. 367.

On the quantum of damages for plaintiff, the court gave the following instruction:

"If the jury find for the plaintiff, in estimating his damages, they will take into consideration the physical injury inflicted, and the bodily pain and mental anguish endured, together with the loss of time occasioned, and all expenses incurred, shown by the evidence, in and about the treatment of his case, also any and all such damages which it appears, from the evidence, will reasonably result to him from said injuries in the future."

The plaintiff insists that a new trial should have been granted for the reason that the jury disregarded this instruction in the assessment of his damages at one dollar. The rule is, that in personal actions founded upon tort and sounding merely in damages, a new trial will...