Ross v. Cooper

Decision Date05 October 1917
Citation164 N.W. 679,38 N.D. 173
PartiesROSS v. COOPER.
CourtNorth Dakota Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court.

Action to recover damages for the killing by McLain Cooper, son and employé of defendant, of one James F. Ross, foreman of defendant's farm. McLain Cooper shot three times at Ross without injuring him; then discharged Ross from defendant's employment, ordering him to “leave the place.” Subsequently, while Ross was over 50 yards distant from where the first shots had been fired and en route to the dwelling house, McLain Cooper overtook him and immediately and without warning shot Ross through the back, mortally wounding him, exclaiming, “I have got plenty more,” meaning bullets. McLain Cooper and Ross had quarreled the night before, ending in an altercation in which Ross had thrown Cooper and had choked him. When Ross saw him at 7 o'clock next morning, McLain Cooper met him with a drawn revolver and stated that he “was going to shoot” Ross, and immediately fired three shots at him. An appreciable interval then elapsed, during which Ross was discharged by young Cooper. A short time later Ross was shot. It is admitted that McLain Cooper had authority as an employé of defendant to discharge Ross, and that he did so. The defendant during this time was away, without the state, and knew nothing of these events. Held, there is no proof to sustain the finding of the jury that, in shooting Ross, McLain Cooper was acting in furtherance of, or to facilitate, the discharge of Ross, or his ejectment from the defendant's farm following such discharge, or in any way acting for the defendant; and hence there is no liability of defendant to plaintiff for the malicious killing of Ross by the son.

The evidence, without substantial conflict, under every reasonable presumption, inference from, or construction of it, affirmatively establishes that, in killing Ross under circumstances amounting to murder, McLain Cooper was acting independently and for himself in the execution of his premeditated design to kill Ross, and that he was not in any degree or particular acting for his father, the defendant. In the making of this murderous assault upon Ross, no relation of master and servant as to it existed between the father and son.

On Rehearing.
Additional Syllabus by Editorial Staff.

The principal reason for the admissibility of dying declarations is what is termed the “principle of necessity”; that is, if they were not admitted, it would be impossible to produce any other evidence from the declarant.

In an action for damages for the killing of plaintiff's husband, foreman of defendant's farm, by defendant's son and employé, a so-called dying declaration, first taken in the form of answers to questions propounded by plaintiff's attorney and subsequently prepared in narrative form and submitted to declarant while in the possession of all his faculties, and signed by him over three months after the shooting, was inadmissible, in view of the provision for the taking of depositions, and of Comp. Laws 1913, § 7927, providing for the perpetuation of testimony in probable or possible actions.

Dying declarations are inadmissible in civil cases.

Appeal from District Court, Traill County; Pollock, Judge.

Action by Mary Ross, as surviving wife of J. F. Ross, deceased, against Harry J. Cooper. Verdict and judgment for plaintiff, motion for judgment notwithstanding the verdict denied, and defendant appeals. Reversed, and judgment of dismissal directed.

Grace, J., dissenting.P. G. Swenson, of Hillsboro, and Bangs, Hamilton & Bangs, of Grand Forks, for appellant. Charles A. Lyche, of Hatton, for respondent.

GOSS, J.

This is an appeal from the final judgment and from an order denying motion for judgment notwithstanding the verdict. Sufficiency of the evidence to sustain the verdict will be first inquired into.

The action arose out of the killing of James Franklin Ross on March 11, 1911, by McLain S. Cooper, the 21 year old son of defendant, Harry J. Cooper. Plaintiff is the widow of deceased. Ross, with his wife and family, had worked for defendant for more than 2 years, living on defendant's farm. The homicide occurred on said farm in Traill county. Defendant was South for the winter, and at no time in controversy was present at, or had knowledge of, events transpiring and upon which this action is based. On leaving for the South for the winter, defendant had told Ross that:

McLain Cooper would be on the farm that winter; that he [defendant] would be too far away to communicate with, and if anything out of the ordinary came up to go to McLain. I wasn't anticipating anything out of the ordinary coming up.”

Otherwise Ross was in charge as farm foreman. McLain Cooper had been on the farm prior to that winter, and was there during that winter. On March 11, 1911, at about 7 o'clock in the morning, McLain Cooper discharged Ross, after shooting three times at him. While Ross was afterward walking to the dwelling house, some 100 yards away, McLain Cooper overtook him, and without warning shot Ross through the back, mortally wounding him.

The complaint predicates liability upon the fact that the son had been left-

“to manage and control the operation of said farm, with full and complete authority and power to hire, employ, and discharge such servants, agents, and employés as he, McLain Cooper, might deem necessary and convenient; that on March 11, 1911, McLain Cooper, in exercise of the power delegated to and vested in him by the defendant, did discharge Ross from the employment of the defendant, and while so exercising such power and authority, and while Ross was peaceably preparing to leave, and without giving Ross the slightest chance to leave said farm and employment peaceably, proceeded to eject him therefrom, and while so engaged, and while acting for defendant therewith in the scope of his employment, and exercising the powers and authority so conferred upon him, he, McLain Cooper, in utter disregard of the safety of said Ross, did, without the slightest cause, excuse, or justification, with unnecessary violence, willfully, intentionally, maliciously, and unlawfully assault Ross, and with force and violence shoot and mortally wound him, of which he died on August 6, 1911.”

Damages in the sum of $50,000 are demanded. A verdict for plaintiff for $3,500 was returned. The answer admits Ross was the servant of the defendant as superintendent of said farm when killed-

“and that after the 13th day of December, 1910, he so worked and labored under the charge and authority of said McLain Cooper, by virtue of the employment of said McLain Cooper by his father, and that he so continued to render service until March 11, 1911.”

The answer further admits:

“That on March 11, 1911, McLain Cooper, in the exercise of the power delegated to and invested in him by Harry J. Cooper, did discharge Ross from the employment of said Harry J. Cooper, and admits that on March 11, 1911, McLain Cooper did shoot and mortally wound Ross. But defendant denies that said McLain Cooper proceeded to eject Ross from said farm at the time, and denies that said McLain Cooper shot or wounded Ross while engaged in ejecting Ross from said farm, or while acting for Harry J. Cooper, or within the scope of his employment, or while exercising any power or authority conferred upon him by this defendant, or by virtue of his employment or agency.”

This presents the issues. In brief, the employment of both Ross and McLain Cooper as employés of defendant, Harry J. Cooper, is admitted, as is the fact that the son had the authority to, and did in the exercise thereof, discharge Ross from defendant's employment. As defendant by his motion for judgment non obstante has challenged the sufficiency of the evidence to sustain plaintiff's cause of action on the merits, and asserts that it affirmatively discloses no cause of action, all the evidence bearing on the discharge will now be set forth.

Plaintiff's case is made up of the dying declaration of Ross, narrating his employment and events up to and surrounding the shooting. It reads:

“The way this trouble started on the 10th of March, 1911, this Jack Hulet was milking. * * * He was doing the milking, and we had a cow that nobody could milk. I couldn't milk her, and he told McLain that he couldn't. Just before dinner, McLain come to me and asked if I could send that cow down to the Sutton farm. I told him, ‘After dinner;’ and so he come around after dinner, and he says, ‘You don't need to take the cow down.’ He said, ‘The kid would milk her.’ The kid is George. * * * And so when they started to milk he couldn't do anything, and he couldn't get no milk from her, and McLain was helping him, and they couldn't do anything, and they was mad, jumping around there, but didn't say anything, and that is where you might say the row started. So, when I asked him at 7 o'clock if he wasn't going to supper, he said he ‘would go when he damn pleased.’ My wife was around the house sick, and she didn't feel like keeping meals all night, so he said he would get supper when he damned please, and he started toward the door, and I started toward him. He looked pretty mad, and we clinched right at the door. We laid down on the ice a little bit, and I told him, ‘If you want to get up, and be a man, and go in and get your supper, I will let you up;’ and finally he says, ‘All right.’ * * * When we had this trouble, John Hulet come along, and he says, ‘Let up, Frank;’ I says, ‘I ain't hurting him;’ I says, ‘Any time he wants to get up and behave, I will let him up.’ * * * During the trouble with McLain, I didn't strike him. I choked him a little, but it never made a mark on him. I didn't have any weapons with me at the time. I didn't make any threats against him at that time, not a thing, and I didn't injure him. I had the prettiest chance in the world if I wanted to, but I didn't...

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4 cases
  • Blair v. Rogers
    • United States
    • Supreme Court of Oklahoma
    • March 28, 1939
    ...... cross examine him, hereinbefore pointed out, is referred to. and considered in a number of cases, including Ross v. Cooper, 38 N.D. 173, 164 N.W. 679. In that case it was. pointed out that the length of time which passed between the. injury and death ......
  • Steinbach v. Bauclair
    • United States
    • United States State Supreme Court of North Dakota
    • October 5, 1917
  • Cummings v. Illinois Cent. R. Co., 43633
    • United States
    • United States State Supreme Court of Missouri
    • June 14, 1954
    ......481; 12 Univ. of Cinn. Law Review 570; 14 Univ. of Cinn. Law Review 449; 6 Conn. Bar Journal 207, 210; Ross Journal 207, 210; Ross v. Cooper......
  • Blair v. Rogers, Case Number: 27870
    • United States
    • Supreme Court of Oklahoma
    • March 28, 1939
    ...... to confront the declarant, or to cross-examine him, hereinbefore pointed out, is referred to and considered in a number of cases, including Ross v. Cooper, 38 N. D. 173, 164 N. W. 679. In that case it was pointed out that the length of time which passed between the injury and death permitted ......

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