8 Mo. App. 211 | Mo. Ct. App. | 1880
delivered the opinion of the court.
. This is an action for recovery of damages ensuing from the act of the defendant in killing one Buckholz, former husband of the plaintiff, who is now Mary Besenecker. The defendant and Buckholz had an altercation, which resulted in the defendant’s stabbing Buckholz with a knife in the region of the heart. Buckholz afterwards became well enough to go out, and, prosecuting the defendant criminally, came to St. Louis to attend the trial. After getting down from his wagon and walking a short distance, he fell dead in the street. It appeared, on the autopsy, that the pericardium, or membraneous covering of the heart, had been wounded as by some sharp instrument, and the testimony tended to show that the wound had produced pericarditis, which, impeding the action of the heart, caused the death.
The answer set up that the defendant was repelling the attack of Buckliolz, and acted only in self-defence. There
The facts recited dispose also of the point made by the defendant, that the court should have put to the jury the question whether the injury was brought about by the wrongful conduct of Buckholz. The argument seems to be that even if the wounding was unjustifiable, and the act therefore wrongful, yet if the wrong of Buckholz caused or directly contributed to his injury, .the plaintiff cannot recover. This is clear. The defence of contributory wrong is not indeed pleaded, — justification being the only plea,— but the facts are pleaded and the question was raised upon the trial. The jury have fouud that the stabbing was a wrongful act, and the defendant now contends that the question of contributory wrong should have been put to the jury. But allowing that cases may occur where the evidence, though failing to prove justification, may yet prove such connection between the provocation given by the de
The defendant, indeed, relies on the doctrine that he who seeks and brings on a difficulty and voluntarily engages in it cannot avail himself of the plea of self-defence, as applied in certain criminal cases (The State v. Christian, 66 Mo. 138 ; The State v. Underwood, 57 Mo. 40; The State v. Starr, 38 Mo. 270), and contends that, by parity of reasoning, the principle of these cases applies here. But, even as against an accused
In giving an instruction as to the damages, which followed the statute and applied its terms to the facts of this case, and in refusing the defendant’s instruction to the effect that the jury must be confined to the damage incurred by the loss of the husband as support of the wife, and must not include mental suffering or grief occasioned by the loss, the court did not err. Wag. Stats. 520, sect. 4. Owen v. Brockschmidt, 54 Mo. 285 ; Foppiano v. Baker, 3 Mo. App. 559.
The judgment is affirmed.