28 Mo. App. 477
Mo. Ct. App.
1888

Lead Opinion

Philips, P. J.

I. Thе first contention of appellant is, that, under the statute authorizing this character of action, only the person who committed the act of homicide is liable in damages to the designated survivor of *487the deceased. The statute is as follows : “ Section 2122. Whenever the death of a person shall be cаused by a wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such casе, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the party injured.”

This action clearly is predicable alone upon the words, “ whenever the death of a person shall be caused by a wrongful act of another.” .It is also clear, that the right of recovery by the designated survivor is limited to, and characterized by, the circumstances which would have entitled the party injured to maintain the action, if death had not ensuеd. It is simply the transmission of a cause of action to the widow or child, which at common law died with the party injured. Proctor v. Railroad 64 Mo. 119; Beach on Contr. Neg., sect. 20. So, in determining whether the wife can maintain this action against the defendant, we have but to determine ‍‌‌‌​‌‌‌‌​​‌​​‌​‌​‌‌​​​​​​‌​‌‌‌‌‌‌​​​​‌‌‌‌​‌‌​‌‌​‍whether or not Gray could hаve recovered damages against him had he survived the injury. Gray’s action would have been trespass ni et armis. In such action all those who are present, encouraging, aiding, and abetting the act, are as much liable as the principal actor. Cooper v. Johnson, 81 Mo. 489. It is the wrongful act prоducing the death which creates the liability. So if A, by his. words of encouragement and conduct, incites B to commit an- assault and battery, or a homicide, he is, both by the criminal and civil code, an accessory before the fact to the wrongful act, and is answerablе therefor.

II. It is next insisted by appellant, that the law of contributory negligence applies to this character of action, and the action of the trial court in refusing instructions of this character is assigned for error. No case is cited where the rule of contributory negligence has been invoked and applied in this form of action to defeat it. In *488actions sounding in tort, arising out of circumstances of contracts, duties, and obligations between two persons, which concern them alone, the maxim, volenti non fit injuria, applies. In such cases the consent, connivance, or invitation of the party complaining to the act will prevent his recovery. The doctrine of contributory negligence is closely allied, in principle, to this rule. So it is said a man cannot complain of a nuisancе in the erection of which he has concurred or acquiesced; nor of an act of adultery at which he has connived ; nor of any act of negligence by which he is injured, to which his own negligent act has in part contributed. But the rule seems otherwise .where the wrongful act concerns ‍‌‌‌​‌‌‌‌​​‌​​‌​‌​‌‌​​​​​​‌​‌‌‌‌‌‌​​​​‌‌‌‌​‌‌​‌‌​‍the public peace and welfare. So it is held that an assent to an assault and battery, or to engage in a duel, does not constitute a defence to an action for damages. “ The life of an individual is guarded in the interest of the state, and not in the interest of the individual alone; and not his life only is protected, but his person as well.” In all such cases there are three parties, of which the state is one, which, “for its own good does not suffer the other to deal on a basis of contract with the public рeace.” Cooley, on Torts, 162-3; Jones v. Gale, 22 Mo. App. 637. Nevertheless, the defendant is permitted, under this statute, to show that the deceased provoked or brought on the difficulty, and by his own misconduct placed the defendant under circumstances of justifiable or excusable homicide, or such as would mitigate the damages. And of this rule the defendant had the benefit in instructions accorded him by the court. This accords with the theory on which such cases have usually been tried. Morgan v. Durfee, 69 Mo. 469; Nichols v. Winfrey, 79 Mo. 544.

III. There is another more serious obstacle to the maintenance of this judgment. While, аs already stated, the law respecting the liability of accessories before the fact applies in its general aspects to this form of action, this statute is nevertheless somewhat sui generis. The “wrongful act,” for which the party is answerable in *489damages, must be such as to cause the death of the other party. This is its clear import. In Jackson v. Railroad (87 Mo. 422), the defendant railroad company was sought to be held liable for the act of its servants, in taking on board of one of its. passenger cars, against his protest, and that of a friend, a man who had been wounded badly by some detectives, and carrying him to a distant point. It was claimed that the act hastened his death, although the evidencе was, that the wounds he had already received were mortal. The court said: “The statute gives the action if the wrongful act of the party sued caused the death, and the first instruction added,- or hastened his death. It is a statute in derogation of the common law, and must receive a reasоnably strict construction. * * * The second of defendant ’ s instructions should have been given, for the same reason that the first given for plaintiff should have been refused, viz., that the statute does not give an action,to the representative, unless the wrongful act complained of occasioned the death of the party.” The first instruction given for the plaintiff was condemned because it authorized a recovery, if the act of the defendant merely hastened the death, although he died of the mortal wounds already given by another. It follows that, where it is sought, under this statute, to recover against a person merely aiding and abetting, but not committing the physical act producing death, the encouragement given, the thing done by him, must be such as to contribute to or produce the cause. It was not sufficient that the defendant should have been merely present witnessing the act, without trying to prevent it. Nor can he be made liable alone on any mere words uttered, or act done, after the fatal shots were fired.

In Cooper v. Johnson (supra), the court say : “ It is not accurate to say that all who were present at the commission of a trespass, are liable as principals, who make no opposition ‍‌‌‌​‌‌‌‌​​‌​​‌​‌​‌‌​​​​​​‌​‌‌‌‌‌‌​​​​‌‌‌‌​‌‌​‌‌​‍or manifest no disapprobation of another ’ s person or property. * * * That one was present and witnessed the trespass, but neither by word, *490sign, or act, nor in any other manner, signified his approval. of it, does not render him liable. He is not, by his mere silence, to be held as countenancing the act. -s * * One may rejoice over a murder after its commission without for that being criminally liable ; and so may one approve and applaud an assault and battery committed by one upon another without subjecting himself to liability to the injured party.” There is nothing in the record to show there was any preconcert of action between defendant and his son looking to this tragedy, or аny encounter between Gray and young McDonald. The latter went to town that day in his shirt-sleeves and unarmed. He borrowed the pistol after getting there, and in the absence of the defendant. The evidence shows that the coming of defendant to town late in the afternoon was purely accidental. There was no evidence tending to show that defendant knew his son had the pistol prior to the instant it was drawn in the melee. The meeting between the parties seemed to be accidental. The evidence fails to show any word оf encouragement from defendant to his son preceding the difficulty, or the firing of the fatal shots. On the contrary, the evidence of both plaintiff and defendant was, that whatever the defendant did say, was to stay the act of the son. The only evidence, in any degree tеnding to show any act on the part of defendant,, prior to the firing of the pistol, from which it would be at all permissible for the jury to infer a willingness even on the part of defendant to aid his son, is- the statement of some of the plaintiff ’ s witnesses. that defendant had changed his pоsition from the porch, and was standing-near his son when he fired, coupled with the act, according to plaintiff’s evidence, of striking Gray after the shooting. On the other hand, the defendant’s evidence tended to show that he not only discouraged his son by word, and did not even seе the pistol until the shot was fired, but that the onset of Gray was so impetuous that he barely had time to reach the parties after the rock was thrown by Gray, and the shots made by the son; *491and that he only rushed in for the purpose of separating-the parties, and did not strike Gray. - On this stаte of the evidence, after the court gave the instruction set out in the statement of facts, for plaintiff, defendant was certainly entitled, as a counterpart, to have the law declared in conformity to the principles laid down in this-opinion. This the court fаiled to do. Instructions numbered ten, eleven, twelve, thirteen, and nineteen, asked by defendant and refused by' the court, should have been given, or the substance of them. Instruction numbered sixteen, asked by the defendant, was properly refused,‘in the form in which it was drawn.. The defendant, however, is entitled to have the jury instructed to the effect that, although they may believe that defendant was present at the difficulty, and did not interfere to prevent it, and although the jury may further believe that, after the shooting, the defendant approved the act; such facts, or acts, alone, are not sufficient to-authorize the jury to find that defendant aided in the-act of killing.

Appellant has discussed other propositions of law, which are not deemed important enough to justify the prolongation of this opinion.

It follows that the judgment of the circuit court is-reversed and the cause is remanded. All concur.





Rehearing

On motion for rehearing.

Philips, P. J.

I. It is claimed that the defendant adopted in his instructions the same error as that contained in the instructions for the plaintiff, for which the judgment was reversed. This is an entire misconception of the grounds of reversal. The opinion ‍‌‌‌​‌‌‌‌​​‌​​‌​‌​‌‌​​​​​​‌​‌‌‌‌‌‌​​​​‌‌‌‌​‌‌​‌‌​‍does not condemn the instructions given on behalf of plaintiff ; but the error of the court lay in refusing to concede-to defendant certain named declarations of law, predicated upon facts which the defendant’s evidenсe tended to establish,

II. It is further claimed in the motion that this-*492court overlooked the fact that the substance of the instructions, asked by the defendant, was embodied in instructions given for plaintiff.

We are wholly of a different opinion. The plaintiff’s instructions were so framed, as while, perhaps, not asserting thе opposite doctrine announced in those which the court refused for defendant, and which we held should have been given, or the substance of them, yet under them the jury might well have believed that defendant’s physical presence, being in a position to aid and аbet, and the fact that he may have struck the deceased after the fatal shot was fired, or approbated the act afterwards, were, any of them, sufficient to warrant .a verdict against the defendant. Whether such acts or any of them, under the circumstanсes, indicated the essential wrongful act, were facts to be found by the jury under proper directions from the court.

As much stress, under the instructions given for the plaintiff, as indicated by the line of argument pursued by respondent’s attorneys in their brief herein, was likely to be placed upon the fact that defendant did not actually attempt to restrain his son, or that he may have struck deceased after the fatal shots had been fired, or approved the shooting after it was done, the defendant was entitled to a distinct and clear enunсiation of the law applicable to his evidence ; that, although he was present, that was not alone sufficient to warrant a verdict against him; that, although he may have run in between the parties after the shooting, or approved of the act afterwаrds, yet, unless the act done by him was such as to cause the death, as defined in the opinion, no verdict should go against him. The language of Judge Story, in Livingston v. Ins. Co. (7 Cranch, 506, 544), approved by this court in Cahn v. Reid (18 Mo. App. 116), is most appropriate here: “If, in any point of law, the (defendant) was entitled to such direction, the court erred in its refusal, although ‍‌‌‌​‌‌‌‌​​‌​​‌​‌​‌‌​​​​​​‌​‌‌‌‌‌‌​​​​‌‌‌‌​‌‌​‌‌​‍the direction afterwards given by the court might, by inference and argument, in the opinion of this court, be pressed to the *493same extent. For the party has a right to a direct and positive instruction ; and the jury are not to be left to believe in distinctions where none exists, or to rеconcile positions by mere argument and inference. It would be a dangerous practice, and tend to mislead instead of enlightening a jury.”

In none of the instructions given on behalf of the plaintiff were the minds of the jury so directed as to what would, under the statute in question, аmount to aiding and abetting, as to enable them to try the case with justice to the defendant. The “glittering generalities” in which plaintiff presented this issue to the jury left to them a dangerous latitude of conjecture, unless restrained or guided by those asked by the defendant.

As appears from the brief of counsel filed in the main cause they themselves denied the correctness of the law applicable to this case, as announced in the opinion herein; and so it is but just to them to say that they did not conceive the instructions drawn by them at the trial and given by the court were out of harmony with their position taken at this bar. Motion overruled.

All concur.