214 Mo. 451 | Mo. | 1908
Suing Mulhall, Ernest Morgan by his nest friend asked $20,000- damages, grounding his right of action on a negligent shooting and wounding. At a trial with the aid of a jury, he got a verdict of $5,000. From a judgment entered, defendant appeals.
The petition follows:
“The plaintiff for his cause of action showetb*454 to the court that on the 24th day of May, 1905, upon the petition of said Ernest Morgan the said circuit court did appoint Joseph Morgan as his next friend to commence and prosecute this suit, and said Joseph Morgan has consented in writing to act as such next best friend for said purpose.
“And the plaintiff further showeth to the court that on the 18th day of June, 1904, in said city of St. Louis and on the grounds of the Louisiana Purchase Exposition Company, the defendant by shooting into a crowd of people negligently shot the plaintiff, Ernest Morgan, with a pistol; that by said shooting the bowel of plaintiff’s abdomen-was perforated in front and rear, and plaintiff’s hip socket was smashed and the head of his thigh bone destroyed; that it was necessary for the surgeon in treating said wounds to cut open plaintiff’s abdomen and close the bowel where perforated, and thereafter to cut off and remove the head of the said thigh bone; and as a further result of said injuries Bright’s disease was developed in plaintiff; that plaintiff’s life was saved by the surgeon, Dr. L. H. Laidley; but plaintiff suffered on account of said injuries most excruciating pain and anguish of body and mind, his constitution has been permanently weakened, his leg permanently shortened, and he now suffers and will continue to suffer great bodily and mental pain and anguish, all to plaintiff’s damage in the sum of $20,000, for which amount and his costs he asks judgment against the defendant.”
The answer was a general denial.
The court, on plaintiff’s prayer, gave two instructions, vis.:
“1. The court instructs the jury, that if you find for the plaintiff, you will', in assessing the damages, award him such sum as you believe from the evidence will reasonably compensate for the physical pain and mental anguish, if any, you believe he has suffered*455 occasioned by said injuries, and the physical pain and mental anguish, if any, you believe from the evidence will result to tbe plaintiff from said injuries in the future.
“2. The court instructs the jury that you are the sole judges of the credibility of the witnesses and the weight to be given to their evidence. And in passing upon the credibility of a witness, the jury are at liberty to take into consideration his or her manner upon the witness stand; the interest he or she may manifest, if any, in the case; the reasonableness or unreasonableness of his or her testimony as compared with the other testimony in the case. And the court instructs the jury that if you find and believe that any witness willfully testified falsely to any material facts, you are at liberty to reject the whole or any part of such witness’s testimony.”
The court of its own motion instructed the jury how to return their verdict if nine concurred, and how if there was a unanimous verdict.
The defendant asked no instructions.
It appears that plaintiff, in nowise to blame, on the date and at the place alleged in his petition was wounded by a pistol bullet. That he received the grievous hurts alleged in his petition was shown, and not challenged by any proof. As no question is made over the amount of the verdict, the details become unimportant on appeal.
There was substantial evidence tending to show he was hit in the abdomen by a bullet from a pistol fired by defendant. That defendant had a pistol and fired it more than once is not denied by him or his witnesses. They content themselves with putting in evidence to the effect that in a scuffle and melee other shots were fired by other parties, and tending to show it was not a bullet from Mulhall’s firearm that struck Morgan. But in this court the cause is submitted by
With this frank admission in the case, it is waste of time to state the evidence on the issue as to whether defendant’s bullet or another’s did the mischief. The jury settled that and defendant bows to the verdict.
As said, defendant put in testimony tending to sustain a theory of self-defense — i. e., that'he was feloniously set upon by one Reed, a desperado, and in battling for his life, by innocent slip and misadventure, shot wide of his mark and (by chance medley) hit Morgan, a non-participating bystander. That issue was threshed out at the trial and the jury found against the theory of self-defense and misadventure. In the face of this finding', we do not read counsel’s brief as insisting there was no substantial testimony on that score on which the verdict could stand. Therefore, it is not incumbent on us to emblazon on judicial pages (and thus embalm) the causes leading up to the rowdy war and its bloody incidents. The prying mind may find them once spread of record in State v. Mulhall, 199 Mo. 202 — once is enough.
Any other facts essential to understand and determine the case will appear in connection with a consideration of the several assignments of error, which are:
(1) “The petition fails to state facts sufficient to constitute a cause of action.”
(2) “There is no allegation in the petition that defendant wrongfully or carelessly or negligently shot into a crowd of people.”
(3) “There is a fatal variance between the allegations of the petition and the proof. There is no*457 evidence that plaintiff shot into a crowd of people.”
(4) “Instruction number one, given on behalf of the plaintiff, merely indicated the measure of damages in the event of a verdict for plaintiff, hut did not state the issues nor specify the facts which must he found to warrant a verdict for him.”
I. The first two assignments of error may be considered together.
(a) Does the petition state a cause of action?
We think so. It is uncommonly laconic and crisp in its charging part, but well charges that plaintiff was negligently shot by defendant with a pistol and that averment charges an actionable wrong. At the very worst, the most that can be said against it is • that it is a general charge of negligence. On that view, absent a motion to make more certain and specific, absent any objection to its sufficiency prior to verdict (as here), the petition must be held good after a verdict. So runs the case and the general law. [Schneider v. Railroad, 75 Mo. 295; Mack v. Railroad, 77 Mo. 232; Dolan v. Moberly, 17 Mo. App. 436; Dieter v. Zbaren, 81 Mo. App. 612; LeMay v. Railroad, 105 Mo. 361; Conrad v. DeMontcourt, 138 Mo. l. c. 325; Rinard v. Railroad, 164 Mo. l. c. 285, et seq.; 29 Cyc. 570, et seq.; 6 Thompson’s Negligence, sec. 7447.]
But the averment is more than a general charge of negligence. The character of the negligence is defined. If we look to the reason of the thing or to the justice of the concrete case, then it is sure- defendant suffered no surprise or other wrong by the condensed phrasing of the petition. This becomes clear because he was thereby informed of the case he had to meet — of the ultimate fact complained of, vis.: a negligent shooting, with time, place and firearm added. It was not necessary to allege that defendant lay under a social duty not to shoot Ernest Morgan negligently and that he violated that duty; for, peradventure, all
(b) It is next argued that the petition does not sufficiently aver that defendant negligently or wrongfully shot into a crowd of people. Let us see about that. The allegation is that “the defendant hy shooting into a crowd of people negligently shot the plaintiff, Ernest Morgan, with a pistol.” Now, the pleader might have expanded his phrase and alleged that: “the defendant, by shooting into a crowd of people negligently, negligently shot the plaintiff Ernest Morgan, with a pistol,” but he did not do so and, however shrewdly analyzed, the allegation made amounts at the end to the same thing as the allegation supposed. If A negligently or unlawfully shoots into a crowd and thereby hits B with a pistol bullet, that is the statement of an actionable wrong in B,’s favor against A. If A negligently shoots B with a pistol bullet by shooting into a crowd of people, the terms are somewhat reversed hut the negligence is the same in each instance — in both it was the negligent use of a deadly weapon with resulting harm.
The two assignments of error in hand are unsound, and, hence, are disallowed.
But, eschewing sentimental conceits and coming to the cold technical law, it has been held that in an action for damages sustained from injuries caused by an unlawful and wrongful assault and shooting, plaintiff is prima facie entitled to a verdict upon proof that he was shot by defendant; it then devolves upon defendant to show that the shooting occurred without
. However, conceding, arguendo (without holding), that counsel’s construction of the pleading is correct and that plaintiff is held strictly to the literal allegation of a “crowd,” yet we are of the notion, as said, that in Missouri two- or three would constitute a “crowd” for firing purposes under the averments of the petition.
On this view, the crowd was there. The record shows the fracas occurred inside and close to the entrance of a “wild west show” with which defendant was connected as a star actor in a cowboy role. The entrance was on the “Pike” at the late Louisiana Exposition in St. Louis. Plaintiff had been to- the show, had left the arena at half past 10' p. m. and was going out through an uncovered alley or passageway to said entrance on the Pike when he came upon four or five, men scuffling in the passageway. The record shows that just before- and fit the time the first shot was fired there were present at least the plaintiff, Reed, one Jordan, “Nebraska Bill,” Mulhall, Mrs. Edwin, Chas. Bishop, Louis Young, Mrs. Bishop, John Murray, Geo. Williams, J. S. Williams, Williams’ little hoy and Judge Corbett. Defendant fired three shots and there was an interval between them. After the first shot and before the second there is testimony that a crowd gathered. The third shot struck the plaintiff who was
The point is disallowed to defendant.
III. Defendant stood mute and neither prayed nor got any instructions whatever. Plaintiff asked none on the trial issue of neglig’ence nor on issues relating to the defense. He asked and got two — one on the measure of damages, the other a rule of law relating to the credibility of the witnesses and the weight
Is there merit in this contention? No, because:
(a) We are cited to Scanlan v. Gulick, 199 Mo. 449, as authority for that position. But that case is not in point. In that case a general instruction covering the issues was rightly refused because it omitted to state a material issue. It simply announces the hornbook doctrine that a single instruction, intended to cover the whole ease, should cover it. The instruction was refused because it left out the question of the bona fides of two instruments of writing vitally bearing upon the pivotal issue, and directed a judgment without requiring the court to consider a material question presented by the evidence.
Counsel lean on Boyd v. Railroad, 108 Mo. App. 303, as a staff. That case seems somewhat in point. But if it holds as counsel argue, then it is not well reasoned and we will not follow it. See, in this connection, Wilson v. Railroad, infra.
(b) An excellent law writer states the general doctrine in'civil cases to be: “It is, then, a general rule of procedure, subject, in this country, to a few statutory innovations, that mere non-direction, partial or total, is not ground of new trial, unless specific instructions, good in point of law and appropriate to the evidence, were requested and refused. A party cannot, by merely excepting to a charge, make it the foundation for an assignment of error, that it is indefinite or incomplete.” [2 Thompson on Trials, sec. 2341]. Judge Thompson supports his text by a wealth of authorities in a,note, adding: “The English rule seems to be that non-direction, where specific direction is not
, To question that general rule in Missouri at this late day would he to spin cobwebs before the eyes of justice and mischievously unsettle the law. This is so because our statute on procedure in civil cases does not contemplate instructions whether or no. Parties litigant have their option to ask or not ask them. That statute ordains (R. S. 1899, sec. 748)-: “When the evidence is concluded, and before the case is argued or submitted to the jury or to the court sitting as a jury, either party may move the court to give instructions on any point of law arising in the cause, which shall be in Avriting and shall be given or refused. The court may of its own motion give like instructions, and such instructions as shall be given by the court on its own motion or the motion of counsel shall be carried by the jury to their room for their guidance to a correct verdict according to the law and evidence; which instructions shall be returned by the jury into court at the conclusion of the deliberations of such jury, and filed by the clerk and kept as a part of the record in such case.”
In construing that section, the better view is that it is permissive, not mandatory. Doubtless it conduces to the science of jurisprudence and the orderly administration of the law to have instructions defining the issues, putting it to the jury to find the fact and declaring the law ou the fact when found, but it is within the knowledge of the profession (and our decisions show) that cases are not infrequently tried, nisi, without them. That mere non-direction is not misdirection is a familiár,- settled rule of appellate procedure. Under that rule, before appellant can predicate reversible error on what a trial court does not say to the jury, he
Here, manifestly, appellant was as much to blame as the court or respondent for the omission to instruct on vital issues; for he by his silence joined in the general silence and made it more profound. At most it was common error, if any, and error common to all is not reversible error. He who does not speak when he should, will not be heard to speak when he would.
The premises considered, we have nothing to do but look to the record and see if it supports the verdict. We find ample testimony to support it.
Accordingly, the judgment is affirmed. It is so ordered.