State ex rel. Renz v. Dickens
| Decision Date | 07 July 1936 |
| Docket Number | 23803 |
| Citation | 95 S.W.2d 847 |
| Parties | STATE ex rel. and to Use of RENZ v. DICKENS et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.
“ Not to be published in State Reports.”
Suit by the State of Missouri, at the relation and to the use of Juliana Renz, against Ed Dickens and others. From a judgment for the defendants, Juliana Renz appeals.
Affirmed.
J. H Peterson and Preston Quick, both of St. Louis, for appellant.
James Booth, of Pacific, for respondents.
This suit was brought in the name of the state, at the relation and to the use of the city of Pacific, Mo., and Juliana Renz, against Ed Dickens as principal and John Mauthe and W. W. Goran as sureties on the official bond of Dickens as marshal of the city of Pacific, Mo. A trial before the court and a jury resulted in a directed verdict for defendants. From a judgment rendered on said verdict in favor of defendants, Juliana Renz appeals.
The petition of Juliana Renz, who will be referred to hereinafter as plaintiff, alleged that defendant Ed Dickens, as marshal of the city of Pacific, Mo., executed on April 7, 1930, to the state of Missouri, to the use and benefit of the city of Pacific, as principal, with defendants John Mauthe and W. W. Goran as sureties, an official bond in the sum of $500, conditioned upon the faithful performance of the duties of his office. The bond, as set forth in the petition and introduced in evidence, omitting signatures, is as follows:
Plaintiff’s petition charged in substance that said bond was duly filed with the city clerk of the city of Pacific, Mo., and that it was breached by defendant Ed Dickens as marshal of said city while acting under color of his office as marshal in that on Sunday, September 20, 1931, defendant Dickens, while arresting a drunken man for disturbance of the peace and while he was in charge of and marching said offender upon an open public street in the city of Pacific, flourished a revolver or gun and fired a shot or bullet which struck plaintiff’s husband in the head, killing him. The petition of plaintiff further alleged that when her husband was struck by the bullet, he fell striking her as he fell, and that said striking of plaintiff by her dying husband caused her great shock of body and mind, "from the direct and proximate result of which she has since said date been suffering from nervous convulsions, nervous indigestion, insomnia and general physical debility and will continue indefinitely in the future to so suffer. ***"
After charging that plaintiff had incurred expenses for hired help and medical attention in the total sum of $500, the petition of plaintiff alleged: "Plaintiff further states that all of her injuries were directly and proximately caused by the carelessness and negligence of said Ed Dickens, in firing said revolver, or gun, in the direction of and striking her late husband and in the consequential falling, by her husband, in a dying condition, against her."
Plaintiff prayed judgment against the defendants in the sum of $500.
The defendants filed an answer denying each and every allegation in plaintiff’s petition.
Plaintiff testified that on September 20, 1931, she was living in the city of Pacific, Mo., and had been living there for about twenty years; that on the date named, she and her husband were standing in the front yard of their home when she saw defendant Dickens and "some little fellow, I don’t know the other fellow, walk to the Brocato porch, the next house, and they go out." She further testified that "Brocato was on the porch and that little fellow— Dickens was driving the little fellow, and there was some talking— I don’t know." When asked where defendant Dickens was taking "this little fellow," plaintiff answered: "He drive him— they say they wanted to drive him in jail." Plaintiff further testified in this connection as follows:
"Q. Now, then, this man that you say was being arrested, what direction was Mr. Dickens going with him?
A. He was driving him uptown.
"Q. What direction, north, south, east or west?
A. That is west, I believe, and they had come to my house across the street.
"Q. Across the street?
A. Yes, sir; and he stopped in the middle of the road, and he pushed him.
"Q. Where?
A. Dickens pushed the other fellow.
Plaintiff further testified that at that time she and her husband were about thirty feet away from Dickens. She testified that Dickens pushed the little fellow. Plaintiff said that a shot was fired at that time which struck her husband in the head; that she was standing right next to him at the time he was shot; that thereafter her husband was not able to walk in the house; that At this point she testified as follows:
"Q. Well, when he fell down, how did he fall, were you near him?
A. I put him down. He went to fall and I took this side and held him and laid him down, and asked him— I thought he tried to get air, and I ran to the fence and told Dickens, ‘Come on and see, you just shot my man."’
Plaintiff stated that the shooting took place a little before 6 o’clock in the afternoon on Sunday, September 20, 1931, and that it was light at the time; that her husband died at the hospital in Washington at 11 o’clock that night. She testified that before the shooting, the condition of her health was all right; that she had never been sick very much and had never doctored very much in her life; but that since the accident "I got a pain in the heart lots of times." She testified that since the accident she is nervous and doesn’t sleep well; that sometimes she is up every night; that she is so nervous she can’t sleep; that she consulted a Dr. Hemker in Pacific and a Dr. Barnes in St. Louis; that she keeps on taking medicine given her by the doctors. With respect to her condition and the treatment she received from doctors, she testified as follows:
A. I don’t go much, I got that same medicine what he gave me.
"Q. Can you recall about how much, if anything, you have spent for medical services and physicians and surgeons, can you remember how much, if anything?
A. One time I spent $2.40, and after a while again I was in St. Louis and bought the medicine.
"Q. I mean, what have you given, if anything, to doctors, for their services?
A. He never charged me nothing, I have to go to see him again.
"Q. You are not through with him, is that it?
A. Yes.
"Q. Now, have you been able to do your housework, Mrs. Renz?
A. Oh, I do, sometimes.
On further cross-examination as to what happened at the time of the shooting, plaintiff testified as follows:
A. Yes, sir; I helped him down, and Dickens was on this side of the fence. He was right here (indicating). He had to go around to the jail. And I says, ‘Dickens, you killed my man come here.’ And he never came. And Frank Brocato came from that corner.
Dr Raymond F. Barnes was called as a witness on behalf of plaintiff, and testified that he was a graduate of St. Louis University and was on the staffs of the Firman Desloge, St. Johns, and St. Louis City Hospitals 1 and 2, and that he had been engaged in the practice of medicine, specializing in diagnosis; that he saw plaintiff at his office on May 8, 1934, but had never seen her prior to that time; that she then had reflexes of the chest, abdomen, and heart; that she was highly nervous and in fact quite hysterical; that he experienced difficulty in keeping her quiet long enough for an examination; that she had a coarse tremor of the fingers and hands and had bitten her finger nails as far as she could bite them; that she was crying on every...
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