*1 MISSOURI, OF COURT SUPREME v. Wilcox. Appellant. B. R. WILCOX, J. F. PERKINS Two, 19, Division June 1922. TO
1. INJURY HUSBAND: Survival of Action. DECEASED At rig'lit person, personal with common a of action dies the and law injuries personal cannot for the recover to her deceased wife only all, recover, law. husband under the common can if at She 4218, 4219, 1919). (Secs. R. under the statute Damages. (Secs. -: 2. -: Punitive Under the statute 1919) surviving only to R. S. the wife can recover at most damages dollars ten thousand as death of her husband the injuries by defendant, inflicted cannot and damages compensatory in have ten thousand dollars as ad- punitive damages. thousand dition ten dollars Disturbing OF Sick 3. CAUSE ACTION: Plaintiff’s Husband. De- damages against fendant had obtained and for ouster farm, husband for refusal to vacate rented and the a constаble, accompanied defendant, went to the a house with place possession. Finding plain- writ of to in execution already loading goods prepared tiff and her husband their to move, sit- the constable entered the house where the husband was ting began peaceably payment to talk with him about the damages father, the and costs. The husband’s who else- resided house, pay had where come into the his son to no at- but told quarrelling, tion constable. the After some further father got began fight, the father him down floor, him, pistol house, from out took ordered him through pistol in with hand marched him the door whereupon porch, pistol the constable took another pocket father, seriously injure and shot but him. did not son, The defendant had had conversation with father or present going on, was not while these occurrences were but forty fifty away; man, at a barn feet another but who was present help goods, crying haul ran barn aloud might had father the constable floor down on the hurt house, him. a The defendant moved few feet and see- towards ing gun following father with in his a hand the constable again. shouted to the shoot him constable to Plaintiff’s husband influenza, ready up at the time but and dressed and away buggy prepared away use; to drive a for his drove neighbor’s few moments and six later an weeks abscess Yol. Wilcox.
Perkins v. performed, grew lungs, operation but he formed Ms and an worse, operation three from the second died effects house; by excited months he was after disturbance at the *2 house, cause of action her. disturbance and bases going weather out into the on the claim that the excitement and his ultimately the disease his weakened condition accelerated and that, Held, plaintiff had cause of action caused his death. if father, death, against un- all for her husband’s it was his who at disturbance, against defendant, lawfully brought and on the not lawfully premises to have was and cannot who on the be of the the death husband. To resist 4. INTERFERENCE WITH OFFICER. obstruct and AN duty peaceable orderly performance in ex- his officer in the ecuting legal judgment wrongful a unlawful. of court is question asked 5. HYPOTHETICAL A Acts Others. QUESTION: expert acts of an which contains material matters based responsible, improper, and an others for defendant is which is not objection should sustained. thereto Physical Injury. A CAUSE ACTION: of Husband: 6. OF Death No husband, damages wife cannot recover for the death of her where wrongful physical injury by of defendant acts inflicted tending causal show a and there is no substantial evidence alleged wrongful disease his acts and the nection between caused her husband’s death. Lungs: -: -: Causal Connection: Influenza: Abscess
7. Exposure. Caused Excitement Plaintiffs part farm, and a of ouster had rented of defendant’s constable, accompanied against him, by de- been rendered and the fendant, place a writ executiоn to had come house with quarrel possession, fight occurred in the constable,' in the house between the husband’s father and the got presence and the father the constable down floor, him, house, pistol him from the drove took pistol, porch shot with on the another but influenza, seriously had had but had hurt. Plaintiff’s husband buggy already recovered, got in a and after the disturbances about neighbor’s, prepared his use and and drove or was for drove to weeks, neighborhood occasionally for six when an driven about upon by lungs developed, operated for which he was abscess weeks, attending grew physicians', but for next six worse operation performed, from the of which he died effects anothеr following day. that he was There was some evidence excited the. fight the disturbances the time of the excitement but, that, jf worse, even make Held, would tend to condition MISSOURI, SUPREME COURT OF fight presence defendant's connection with the husband’s shown, any supposed were causal conection between defendant’s conjecture. acts and the husband’s death based on mere Appeal, from Christian Circuit Court.—Ron. Fred Judge.
Stewart, REVERSED. Raymes,
W. M. L. T. Bowker, John Wilson S. Rays appellant. G. P.
(1)
wrongful
suing
for the
death of her
wife,
husband, cannot recover to
ten thousand dollars
exceed
punitive damages.
compensatory
for both
Secs.
(2)
4218, 4219, R.
4218 and Section
Section
derogation
4219, Revised
Statutes
are in
*3
strictly
common
must-be
law and
construed. Troll v.
Jacksop
Light
App.
Ry.
Gas
600;
182
Co., Mo.
Co.,
v.
Sylvester,
(3)
422;
87 Mo.
205
493.
Bates v.
Mo.
Sec-
except
recovery
tion 4218
authorize
does not
where
wrongful
act
death —not
where it
tributed to or hastened the
of the decedent.
death
Jack-
Ry.
(4)
son
Mo. 422.
v.
87
The courts
that,
hold
petition charges
injuries
unless the
the acts and
to de-
cedent to have
wanton,
willful or malicious, the mat-
punitive damages
jury.
ter of
cannot
submitted to the
State ex rel. Dunham Ellison,
v.
278
649;
Mo.
Tavis v.
Experts
(5)
permitted
383.
280 Mo.
Bush,
are not
give testimony
directly
on the matters
in issue. Fausette
App.
v.
585;
193 Mo.
City,
Grimm,
Henson v. Kansas
Ry.
App.
Mo.
Mukel
443;
277
v.
205
Ass’n.,
Mo.
484.
(6)
hypothetical question
The
must be based on the
Mining
evidence
case. Ridenour v.
164
Co., Mo.
App.
(7)
merely
576.
Constable Evans
performing
duty
calling
his оfficial
W.
Perkins
C.
with the
alleged,
injury
(a)
place,
execution
it
when,
took
possession
recovered
When
for the
damages
property,
right
costs,
his
to execution
it was
followed, issued the
constable was bound
703
1922.
TEEM,
APBIL
Yol.
searching
diligence
obey
it and to
reasonable
use
property.
Burton
70;
93 Mo.
Hudson,
Fountaine v.
(b)
Sweaney,
v.
390.
4
8 Mo.
3;
Gordon,
Mo.
Fisher v.
discharge
the elder
duties,
"With
constable’s
right
4364;
sec.
interfere. E.
had no
(c) Undoubtedly the
State
24 Mo.
v.
368.
Dickerson,
silently
tamely
required
submit
was not
tending to defeat his lawful
to the acts of J. M. Perkins
equal
purpose,
powers
officer are
for the
of an
App.
Eeyburn,
rel.
7;
ex
duties. Nichols
55 Mo.
State
v.
(14 Ed.)
v.
3
on Ev.
sec.
143;
Mo.
Greenleaf
Gates, 67
(d) Eespondent’s
65.
evidence showed
own
appel-
the time
time
at.
Evans shot
elder
'(whether
be-
it was
lant called to
constable to shoot
good
fired), both
reason
fore
or after the shot was
necessary
of one
to believe
defense
that action
right to act
to defend
one, therefore,
both.
for action in defense
the other to call
himself, and
may
for himself,
for what one
do
another,
himself or
may
125;
Mo.
State
Eeed,
v.
do for another. State
App.
v.
Brouster
Fox.
iMo.
125;
v.
App.
80 Mo.
Totman,
(e)
nothing
reasons,
for the two
more
Since,
711.
legal liability
permits,
resulted
was done than the law
Depriest,
App.
doing.
333;
65 Mo.
Holland v.
from the
Mining
App.
Mining
534;
Co., 50 Mo.
Charles
Go. v.
Mo.
Pulse,
94;
Nations
22 Mo.
Eankin,
(8)
injured
Bishop
An
sec.
Law,
on Non-Contract.
injuries
party
at the hands
add’ to
received
cannot
increase;
even if the
and recover for
another,
*4
by
injured
appellant,
it was
an
act
deceased
subjected
exposure
aggravated
himself,
recovery
Francis v. Transit
can be had therefor.
no
Fordyce,
App.
144
7;
532;
v.
Mo.
Fullerton
Mo.
Co., 5
291; Detrich v.
104 Mo.
McGrew,
Eailroad,
v.
Bailroad
(9)
conjecture
App.
A verdict
40.
based
89 Mo.
permitted
speculation
stand;
not
and as
will
be
and
appellant’s
the death
evidence
of her
own
shows
things
one
several
may
have resulted
704
MISSOURI,
OE
SUPREME COURT
for some
it
result,
and does not
did
show from which
liable,
not be
would
causes,
least,
Storage
121
recovery.
Co.,
there can be
Demaet v.
no
App.
S.
Co.,
Mo.
Grain
178
105;
Nelson
Biddlecom v.
Root v.
134;
Mo.
750;
W.
Warner
178
Railroad,
v.
City, 91 Mo.
v. Kansas
Railroad,
367;
195 Mo.
Smart
injury
bodily
App.
(10)
592.
no
there
been
has
Where
injuries
trespass
recovery
nor
by
there can
no
Strange
anguish.
fright,
agitation or mental
shock,
Ry.
App.
Trigg
Mo.
Co.,
v.
586;
Mo.
v.
74
Railroad, 61
McCardle
147;
34;
Connell v.
116 Mo.
Union,
Western
Ill;
v.
ing
Mill-
D.
Hunter Bros.
Co.,
Geo. Peck G.
271 Mo.
Stanley,
App.
v. Pullman
308;
Co.
132 Mo.
Smith
v.
App.
138
147 W.
Over,
Mo.
Co.,
238; McGee v. Van
S.
Ry.
Chesepeak
976;
742;
v.
W.
Bobinett,
Co.
S.
Ry.
Brooklyn,
Spade v.
Co.,
Leahman v.
(1)
undoubtedly
This suit
based on what is
4219,
Revised
now
Statutes
Sections
plaintiff
is therefore limited
law to
$10,000 as
she can recover. In
maximum amount which
this case the
petition
compensatory
рuni-
asked for
$10,000
$15,000
damages. Defendant answered
tive
went
to trial—
raising
question about the
amount sued for, and now
appeal
petition
only
it
been discovered that the
has
jury
mark,
overshot the
but
the verdict the maximum that
for twice
was entitled to
under the statute.
recover
Since the
has
appeal
suspended
being
this
and the verdict
in excess
respondent,
per-
the statute,
limit under
if
willingly
gladly
will
so,
to do
enter
mitted
a remit-
*5
705
1922.
Vol.
bring
titur
the verdict and
of an
sufficient to
amount
Damage.
judgment
Act.
down
limits of the
to within the
(a)
Higgs
106; Cook
75 Mo.
Hunt,
This can be done.
v.
Printing
Rail-
v.
v.
546;
Globe
Burdict.
471,
Mo.
Co., 227
Company,
way
Reynolds
Transit
242;
123
v.
Mo.
Co.,
(b)
affirmed
be
(cid:127)
hypothetical questions
question
counsel
that
raises the
in the case.
must he
While
based on
evidence
all
(cid:127)
general proposition
may
said,
it is
as a
be true,
right
to assume,
of counsel
“it
is the
however,
within
state of facts
evidence,
the limits
opinion
justifies
have
claims
evidence
experts upon
Lawson
thus
the fact
assumed.”
(2
Opinion
Ed.) p.
Expert
Fullerton
166;
Evidence
&
Eailway,
Fordyce,
48;
Mo.
Mo.
Euss v.
(10) Appel-
City,
said, County, Polk caused the constable of Marion go of Missouri, the home and her wrongfully maliciously said husband, caused, instigated, encouraged aided constable to make by shooting an assault on her husband’s him with father, presence a loaded revolver in the cf her said husband, instigated by and also the arrest of her husband’s father by foregoing, constable; reason belief of her fatally his father husband that shot and owing phys-
woundеd, and to her husband’s weak greatly agitated, ical condition at the he became time, by foregoing, excited; nervous and reason of compelled her husband was drive from their home, improperly wrapped buggy, unassisted, clothed, damp, windy great by cold, w’eather, distance; that agitation excitement, nervousness, reason his aforesaid, caused defendant’s acts reason of exposure aforesaid, his from disease which he was suffering, aggravated, then virulence its increased finally April death on 8, 1919; that reason conduct aforesaid, defendant’s and the death support lost the she aid,t comfort thirty-two years pos- age, latter; that he was splendid annually habits, sessed and contributеd support family. $1,000 $600 Said first prayer concludes with a $10,000 count actual dam- punitive ages, damages. and $15,000 petition practically The second count the same *8 except charges as it first, the that the of acts defendant complained to of “contributed and hastened the death sup- of reason lost of sbe his aid, port comfort.” petition, to each
Defendant demurred count of said thereto demurrers were overruled. and his general The answer first count contains a de- alleges nial. performed It all of the also that constable’s acts were part of duties, as such as constable, in of writ then in execution, the service hands for Yol. v. Wilcox. person necessary of his defense the
service, danger Defend- etc. father, of deceased’s at the hands petition was the the second count answer to ant’s count. to the first as similar to the one filed appears the that evidence defendant was from the It Hope, in Pleasant land near owner of about acres spring County, re- that in -Missouri; Polk part land, of said spondent rented husband and her crop thereon was when the to the same and were vacate occupy- January they were still 8, 1919, that made; ing premises; on their to vacate that failure said agreement., commenced an ac- same under County, justice’s recover of Polk court tion possession he 11, 1918, that on December land; of sаid against plaintiff’s for the husband recovered damages, premises, possession $25 said action; that execution in said for the costs incurred judgment, December 11, on said said issued respondent’s family were sick time, that at some' January appellant until waited with the that influenza, so respondent’s family hearing had re- that after 8, 1919, recovering from before he. at- illness, or were covered tempted enforced; that on said execution to have appellant with Thad went, Evans, date, last named premises township, aforesaid, constable of respondent and her husband had vacated to see whether him the took with execution afore- same; that Evans they they found re- land, arrived said. When рreparing spondent move; her husband were wagons: goods nearly they loaded into their all ready up respondent’s dressed, husband standing yard. away buggy then On in a to drive they found J. M. farm, Perkins, their arrival at the yard. respondent’s husband, out father of was, him where his son and the asked father The constable then went the house. him was’in told plain- C. house see W. into the horse and took unhitched his it tiff; *9 MISSOURI, OF SUPREME COURT v. Wilcox.
Perkins fifty yards forty the house. the or from barn, about prac- he house, When into the found the constable went nothing tically everything he said removal, loaded so place, vacating talk but did to re- them the about spondent payment the the about and they were talk- for in the execution. While costs, called ing subject, respondent’s J. M. father-in-law, over this son not to and his house, came into the told Perkins, pay he did not owe constable, that attention anything. cjuarrel, After further some between fight they engaged or in a stable M. Perkins, ánd J. plaintiff’s husband in the room was sit- fight scuffle, where controversy ting. ac- There is as to how the some they got tually clinched, but Perkins the con- commenced, pistol away him, or- stable took his floor, pistol with constable’s dered him out of the house and porch, him out on to the door, his marched hand, place. As the and then ordered him off the stepped got pistol porch, another out of his he off pocket, not kill M. but or ser- shot J. did iously During trouble him. all this in the house, wound appellant away at the barn, was some distance and knew nothing until Rome occurred, Clark, about what who family, helping to move came to barn that M. and told defendant J. Perkins had on the floor of house, constable down was liable appellant go up separate hurt and advised him, that want do them; it, did ap- latter so, declined; asked to do and the that Clark pellant both started towards the house, Clark they got when near house Evans came out first, gun hand Perkins was behind with follow- only ing any- one him; was the Perkins porch thing; Evans came off he turned appellant, stage Perkins; shot at this thirty forty away, proceeding, while feet called to again, doing the constable shoot him but, instead ' so, drop gun, Perkins to he told latter did so. Voí. v. Wilcox. *10 talk- was that the constable M. testified
J. ordinary tone ing in the costs, tо his son about not way, gentlemanly he the son wlien told in voice, and a any barn pay that the was constable; the attention to yards forty fifty from the house. Witness at least he costs, the about the he heard talk testified when that, Billy, you getting shook to are “Here, said to his son: pay up. pieces. getting no Don’t tore are all You “You told fellow;” him, also attention to he ‘‘ ’’ anything. testified: He further After don’t owe them away gun him, from the I took tlirowed down and my say anything son. more not to I Mr. Evans told away away gun I ‘Get said, from him, the After I took ” my This witness also son alone.’ and let from here gun away the from he took the that after testified porch, and the latter out on stable he followed porch; got still the con- had he constable off place, gun him leave hand, in his ordered stable’s him. He said shot constable and then the pump, away, forty under told about feet witness. to shoot tending nothing to show that in the record There is anticipate any difficulty appellant, un- reason to The trouble evidence is Clark. til he told of difficulty respondent’s undisputed husband after the buggy, got voluntarily into the his horse to the hitched anyone, any suggestion and, latter, without quarter to Gilmore’s, of mile drove a accord, own stayed gone, there children wife and where his night. all plain- shooting January 8,1919, occurred April die until
tiff’s did repetition, will we considér the avoid order to In rulings remaining instructions facts, opinion. necessary, in the as far as court, jurors in a verdict favor of returned Nine of the petition respondent count for as $10,000, the first punitive damages, damages, $10,000 but actual MISSOURI, OP SUPREME COURT petition. Judg- finding made no as to second count accordingly. in Defendant, time, ment entered due judgment. .filed trial arrest of motions for new ap- duly overruled, Both and the cause motions were pealed by him court. to this
I. to have tried the court, This case seems disregard respondent, and counsel utter either recovery law. statute or common There could in a death under the for the reason latter, case obvious right person. personal that a of action dies with the under Considered as suit the maximum statute, recovery yet amount of a death $10,000, case is *11 plaintiff actually pеr- for sued the court $25,000 and judgment compen- a mitted be entered for $10,000 to as satory damages, exemplary a like amount for dam- plaintiff’s ages. The death on occurred April dispose 8, we will 1019, and case as a statu- tory action, under Sections 5426 and 5427, Revised Stat- 1909, utes now Sections and 4219, Stat- Revised utes 1919. by appellant
II. It is contended at the that, con- testimony all clusion the trial court case, should have sustained his to demurrer the evi- dence, and directed verdict in a his behalf. tefcase.61 supra, provides Section 4218, that: person “Whenever the death of a shall be caused by wrongful . . act, . and the act ... is n suchas would, if death had not have ensued, entitled the party injured to damages maintain аn action and recover respect in person . . thereof, then, . who . . . have would been liable if death ensued shall be damages, to liable action for notwithstanding the death person injured.” person may The who sue and the recovery amount of are determined Sections 4217 and 4219, Revised Stat- utes 1919. In petition, the first count of the charged it is wrongful plain- defendant’s acts the death Yol. jurors for a verdict returned Nine of the
tiff’s husband. plaintiff actual $10,000 count for under said first finding jury punitive damages, made $10,000 hut changed acts and that the as to the count, second hastened to and defendant contributed conduct of counsel It asserted death of husband. is jury 12) (p. respondent “the in their for brief appellant count.” second effect for found "said very need fully heretofore, are set out facts way. general only The evidence to in a be referred es- undisputed the real owner of a controversy; the use that he reserved tate occupied dwelling thereon room in house lawfully on the therefore and was premises; 11, 1918, on December against Perkins, W. C. defendant, in favor this entered prem- possession plaintiff, of said for husband of amounting damages, for costs ises, $25 execution 1918, December valid $8.10; that said judgment, T. delivered to was issued on said Township Polk Coun- of Marion Evans, ty, said constable directed Missouri; that said execution possession dispossess deliver C. said W. premises defendant, collect of said damages aforesaid; costs Perkins the C. W. January morning before 8, 1919, that on *12 premises, M. said J. defendant and arrived stable plaintiff’s and one Rome husband, the father of Perkins, wagons, premises with had said and had reached Clark, goods nearly all the and thereon loaded moving place them from said the view with husband, morning; horse the hitched to the was on that leaving, plaintiff’s in buggy husband to use was or for ready buggy; hitched to to be harnessed, hauling goods and those the plaintiff, were her husband nearly ready leave when and would arrived, to thirty gone premises, in minutes have been temporary subsequent delay. except the the When OP MISSOURI, COURT SUPREME Wilcox.
Perkins in constable was and defendant J. M. Perkins arrived, yard. the The see his he wanted сonstable told M. son, W. C. he was. J. Perkins, where asked replied in told Perkins son house, his get part in. constable how The defendant took in this took his it conversation, horse, unhitched yards nothing forty fifty barn distant; or and knew of what occurred in the house between the constable and M. J. until Rome down to barn came Clark hallooing top at the him that his voice told old might man Perkins hurt down, go up separate him. He them. advised defendant to Finally, Clark and defendant started house, toward they got thirty forty and when within or feet of same, by' pursued the constable came out of M. house, J. pistol Perkins, with his then band, who was shot pistol with second which the constable, lat possession": ter retained Plaintiff’s husband was still in the house where the combat bеtween the con place. Up point, stable and tóok his father to this defendant had not house, no conversa tion with had not seen did not him, physical know he where nor was, did know what his condition was at time. The defendant had abso lutely no connection with what occurred the house shooting, respon before the nor he in manner illegally sible therefor. On the other M. hand, J. wrongfully interfered with the constable, while the performing duty legal latter proper in a R. [Sec. manner. State v. Dickerson, l. 368.] Mo. c. ' RylaNd, In the latter speaking case, J., for this pointed court, said: “The law has mode of out.the carrying public justice country; officers are appointed judgments or elected execute the of our they power courts, and are clothed with certain and au- thority, they required perform are certain duties. person then who obstructs resists such officer in against performing his rises duty up power *13 Yol. Wilcox.
Perkins v. like a not punished crime, for his State, and should be person rights or trespasser another mere on the of well-being' disregards property, but one who as good government state.” and renter plaintiff’s not a father husband pos- upon the writ place, if he had been and even deliver to the latter session directed constable possession therefore defendant, to the same legal right with the constable interfere father had duty. performance not The father-did of his sick, ask inform the constable that his son was discussing such him under with desist from the costs angry his son ordered manner circumstances, but in an ignore thereby commenced officer, opinion troversy are heretofore mentioned. We deliberately plaintiff’s that the unnecessarily father of difficulty brought with the a presence was then of his sick whom he said son, up,” therefor. excuse “shaken without the semblance of making any of remove The constable no effort to knew, parties premises, they from the as he were packed ready proper practically move. In gentlemanly discussing question manner, plaintiff the father husband, costs with precipitated controversy appeared the scene, well calculated with constable which was to excite his plaintiff ever son and make him nervous. If the growing a cause out of the dis- kind, of action of presence in of her house, turbance in the against against her husband’s father it was defendant.
Turning we in- evidence, find prove experts, five doctors, troduced that defend- wrongful acts caused the death of ant’s hus- sample propounded questions band. As a to said experts, propounded quote from the one we record the Young, which follows: to Dr. Homer reads as you “Q. I’ll ask whe.her not if man was sick thirty something days, like had been sick flu, with *14 716 SUPREME OF MISSOURI, COURT
Perkins Wilcox. v. part been delirious of the confined to time, greater improved part bed a had become time, so up that he could set times officer should short put come to his there in his out;, house to while presence attempt, put forcibly the officer should to they sick man’s father from the room in which out were, they presence engage struggle should the sick the constable shoot the man, father should holler, and the other man ‘Kill! Kill! should Shoot him!/ whether or not the excitement would a decrease cause vitality resisting powers'?” .in his only part question relating to defend- portion. timely ant’s conduct is the italicised A^ proper objection question, was made to the above improperly Leaving out overruled. consideration the telling conduct of defendant in the constable to shoot M. J. Perkins after he had from forced cоnstable gun, plaintiff’s point house at the aof while controversy still house, inside the it will seen' hat between the constable the father in the house was improperly treated as the act defendant, and that the legal effect of the latter’s his own act, based on conduct, experts jury.! was never submitted either the Dr. Young inquiry above answered the as follows: there,
“A. I would like to Well, know further if complications any arising were 'flu. “Q. None stated. question
“A. have I would to answer that rather general limited. As a rule excitement will tend make his condition worse.”
The father son, entered house talking Billy, found to him: “Here, you getting up. pay are all tore Don’t no attention pertinent inquire part this fellow.” It is what alleged wrongful son’s excitement attributable to acts of defendant, it caused the death asserted question propounded husband? The experts improper, they were because contain material 717 Vol. v. Wilcox. upon parties, and for other the acts of matters based questions responsible. The which the defendant was speculative purely nature, in their were and answers objections conjecture, appellant’s based mere [O’Malley v. Rail thereto way, been sustained. should have 125; 178 Mo. Railroad, 325; 113 Mo. l. c. Warner v. Swearingen 104-5; l. c. Mo. Railroad, McGrath l. c.Mo. Railroad, Mo. Fritz v. Railroad, Railway 589-90; 1. c. 190 W. 79-80; Co., Grant v. (Mo.) Phillips 950.] c. 231 S. l. v. Travelers’ Ins. W. *15 plaintiff’s husband, shows that III. The evidence feeling morning January welt 8, 1919, was on thе enough preparatory up get himself vol- dress goods premises; leaving untarily that his defendant’s ready buggy packed, practically his horse and all were thirty departure, from that less than minutes for husband arrival the time of defendant’s except shooting quarrel the for moved, have would subsequently short time after occurred. Within which plaintiff’s shooting, came out to see husband the the latter that he was not from ser- father and learned plaintiff’s Thereupon, iously husband the hitched hurt. buggy, got latter, and into the drove horse quarer family gone, one had Gilmore’s, where prem- he left words, In other defendant’s distant. mile shooting, shortly the of his own accord, with- after ises, suggestion from either the defendant or out just he have done had left would neither stable, present. nor the constable been It further the defendant - he appears that either or drove, from the evidence was neighborhood occasionally until around driven, developed empyema, February he a case 27,1919, lungs; commonly called an abscess of the that operated at that time for this abscess he was grew physicians; attending that he from worse that operation April awhen second 7,1919, until was time on, performed; from disease, the effect of died day, just following three months after the on the trouble premises. at defendant’s SUPBEME OF MISSOURI, COUNT clearly testimony appears
It from defend- plaintiff’s January ant never 8, 1919, saw shooting; until house after the that deceased was presence shooting, at the time not in was plain- of defendant; aware that Appellant tiff’s husband knew the house, sick. constable which authorized execution, an possession premises appellant, to turn over the damages and to collect the therein. and costs called being After M. Perkins had informed Clark that. J. Constable down on floor and liable to hurt him, got with defendant, then to the house and Clark, started thirty forty
within of same, feet when defendant ejected being saw constable the house gun in his intruder, hand, with and hallooed constable to clusively appears him, shoot which the officer did. It con- testimony,
from the
physical injury
husband received no
at the hands of
decidedly
opinion
defendant. We are
even
that,
actually
if defendant
liad
shot
armed,
J.
calling
M.
instead
himself,
peculiar
'to do
under
facts of this case
so,
there can
recovery.
[Trigg Railway,
be no
74 Mo. l.
c. 153 and
Railway,
cases cited;
Mo. l.
Marshall
c. 615-6;
*16
Connell
U. Tel. Co.,
v. Western
Tested by they supra, re-infor.ced, as are, Missouri cases especially italicised, those cited, the other authorities holding, facts dis- that on the we no hesitation have any physical in- in the absence record, closed wrоngful alleged juries acts of defend- inflicted maintain action. is entitled ant, the foregoing for cavil leave no room authorities The of our conclusion. She had as to the doubt correctness remedy do not believe the law, common and we no a case ever cover death statute relied was intended reverting foregoing, Aside this character. controversy, hold that there we is merits tending in the record to show evidence substantial wrongful alleged between acts causal connection the death of shooting. after In three months disease opinion, facts re- that the herein, are clusion, we controversy, lating do not the merits rise conjecture. respectable dignity even accordingly reversed. below Beeves concur. CG., White, *17 opinion foregoing of Rajley, CURIAM: The PER opinion adopted hereby court. All C., is judges concur.