43 A. 778 | Md. | 1899
Lead Opinion
This suit was brought under Article 67 of the Code against the appellant to recover damages for the killing of *475 Uriah Johnson, who was the husband of Ann E. Johnson, and the father of the other equitable plaintiffs. Since the passage of the statute which now constitutes that Article of the Code, actions for alleged negligence causing death have been very frequent, but this is the first time this Court has been called upon to review a case in which the death, which is the foundation of the suit, was occasioned by the discharge of a loaded pistol at the person killed. Our statute is very similar to what is known as "Lord Campbell's Act" (9 and 10 Victoria, ch. 93), in most respects, but it provides that the suit is to be brought in the name of the State, for the benefit of the wife, husband, parent and child of the deceased, "whenever the death of a person shall be caused by wrongful act, neglect or default, 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" against the person who would have been liable if death had not ensued, "although the death shall have been caused under such circumstances as amount in law to felony."
The appellant had a store at Bynum Station, on the Baltimore and Lehigh R.R., in Harford County, in which was the office of the railroad agent. Andrew Reynolds, the brother-in-law and clerk of the appellant, was the acting agent of the company. Uriah Johnson was engaged in the canning business, and several carloads of empty tin cans, intended for him, had been at the station some days. Reynolds had demanded demurrage on the cars, and had re fused to let Johnson unload them until it was paid. Tucker, at the request of Reynolds, talked to Johnson about it. On March 31, 1893, the disagreement about the demurrage resulted in Johnson and Reynolds coming to blows, but after the fight was over Johnson went away and returned with the money, which he paid. On the first day of April Johnson and a colored man were unloading a car, and, according to the evidence of the defendant, Johnson attacked Reynolds as he was passing by and beat him severely over *476 the head with a club. Some one called Tucker, who was in the store, and he went out, having a pistol in his possession. There is some discrepancy between the witnesses as to the details of what then occurred, but Tucker fired his pistol twice at, or at least towards Johnson — one ball striking in the side of the car three or four feet above the ground, and the other striking Johnson, and resulting in his death a few days afterwards. The evidence of the plaintiff's witnesses was to the effect that Johnson and Reynolds had been separated before Tucker fired, but the defendant and some of his witnesses said that Johnson was still striking Reynolds over the head with the club, the size of which was also in dispute. The defendant testified as follows: "I ran out and saw Uriah Johnson beating Reynolds over the head; * * * he was hitting him as hard as he could, and not saying a word; the blood was running down over Andrew, and I thought he would kill him on the spot; I drew my pistol and fired, as I thought, above his head; the second shot I fired, Eugene, my son, caught my arm."
1. After Tucker, Reynolds and some others had testified on behalf of the defendant, his son was called, and after stating that he saw Johnson clubbing Reynolds over the head, he was asked the following question: "When you saw this beating of Reynolds by Johnson, what impression did it make on you as to the effect which the beating was producing on Reynolds, especially as to whether Reynolds' life was endangered by the beating?" The Court, on objection, refused to allow it to be answered. The theory of the appellant is that he was justified in shooting Johnson, either to prevent a felony from being committed by him, or in the defence of the life of Reynolds, his clerk, provided he bonafide believed, and had reasonable ground for such belief, that Reynolds' life was in danger. He therefore contends that this inquiry was relevant and proper as reflecting upon that question. It is true that under the common law a homicide may ordinarily be excused in defence of a servant under such circumstances as would excuse *477
the killing in self-defence, but without stopping here to discuss what would justify the latter, can such evidence as that offered be admitted? It is sometimes difficult to draw the line between what is and is not admissible from a non-expert, when his opinion is offered in evidence, but when the facts on which he bases his opinion can be specifically described, so that the jury can form a proper judgment, it is certainly safer to confine the witness to a statement of the facts and let the jury draw the conclusions. Indeed, in many cases, where the evidence is spoken of, as opinions of witnesses, it is really their knowledge that they testify to. Sometimes a witness cannot communicate to the jury all the facts and circumstances that influence his judgment, but in a case such as this there is no reason why the witness cannot describe to the jury what he saw — what actually took place within his view. If he is to be permitted to state the impression made upon his mind from what he saw, that would likely depend in a great measure upon his own temperament. A cool, collected man, when seeing a fight, would be impressed in a wholly different manner from what a timid or excitable person would be. The sight of blood on such an occasion might impress a nervous person with the idea that the injured one was in imminent danger of the loss of his life, while one more accustomed to such scenes might regard it as rather a trivial matter. Then, again, each witness might form his conclusions from an imperfect view of the situation. Those who have had any experience in criminal courts know how widely witnesses differ in their accounts of fights they see — and oftentimes honestly differ, but they have viewed the scene from different standpoints or have been influenced by the amount of excitement the occurrence has produced in them. It is true it may be, and oftentimes is, difficult for the jury to reconcile the statement of facts, but it would be much more so for them to reach proper conclusions, if they must consider the impressions made on the minds of the spectators. In Turnpike Road v. Leonhardt, *478
2. The next point for consideration is raised by the plaintiffs' prayers marked one and a-half and twelve. They practically raise the same question, and as the twelfth is the shorter of the two we will quote from it. By it the Court said, if the jury found that the defendant "fired his pistol towards Uriah Johnson, the father and husband of the equitable plaintiffs, and shot and killed him, then the burden is upon the defendant to satisfy the jury by preponderating proof of any justification or legal excuse for said shooting." A good deal of the argument was addressed to the form of the pleadings. Undoubtedly in many cases the pleadings may be some guide as to where the burden of proof lies, but it does not always follow, as the defendant is sometimes permitted to offer evidence under the general issue to prove a defence, the burden of which is on him to establish. In the case before us the amended declaration does not allege that the defendant wrongfully discharged the pistol at Johnson, but apparently purposely left out that word, as the declaration originally filed did charge that the defendant "wrongfully shot and wounded" him. The defendant only filed the general issue plea, which, strictly speaking, only put in issue the question whether the defendant shot and killed Johnson, if we are governed by the pleadings alone. We do not refer to the other allegations in the narr. of beating, striking with stones, etc., as they are not embraced in these prayers, and the evidence shows conclusively that the death of Johnson was the result of the shooting, *479 and not from the other alleged injuries. It might well be questioned whether the declaration, if it had been demurred to, would have been sufficient, but neither that question nor any other which requires us to pass on the pleadings, has been presented by the record. Nor do we think that any special light on the point raised by these prayers, is reflected by the suggestion that the statute has created a new cause of action, which is undoubtedly true, for although in some States statutes have been passed which only provide for a survival of the cause of action the deceased had, our statute is not of that character. By it "the jury may give such damages as they may think proportioned to the injury resulting from such death," and not such as the injured person could have recovered if he had survived. The injury for which the equitable plaintiffs are compensated is the pecuniary loss sustained by reason of the death of the person through the wrongful act, neglect or default of the defendant. The statute, therefore, properly speaking, was not passed, as is sometimes said of it, to remove the operation of the common law maxim, actio personalis moritur cum persona, as it has not undertaken to keep alive an action which would otherwise die with the person, but, on the contrary, has created a new cause of action for something for which the deceased person never had, and never could have had, the right to sue — that is to say, the injury resulting from his death. But notwithstanding all that, the wrongful act, neglect or default, is of the same character as that for which the injured party could have sued, if he had survived the injury, and therefore the question of burden of proof is in no wise affected by the fact that the statute gives a new cause of action.
It must be conceded that to entitle the plaintiffs to recover, the burden was on them, primarily, to establish such facts as would bring them within the terms of the statute, and they were therefore required to make out a prima facie case of wrongfulkilling, but from that concession it does not follow that the burden was on them throughout, as to *480
all questions that might be raised by way of defence. It has been held over and over again in this State, that if a suit is brought under this statute for the negligence of the defendant, the burden is on the plaintiff to prove the negligence, yet if the plaintiff's testimony makes out a prima facie case of negligence, and does not disclose want of care on the part of the deceased, the burden is on defendant to establish contributory negligence, if that is relied on. Frech's case,
The doctrine that permits one man to kill another to save a third party should be applied with great caution, and at *483 least the apparent necessity for such act must clearly appear. There is in reality more necessity for holding the defendant to a strict account in such cases than when one claims to have killed another in his own defence. It may be that the person intended to be protected was the one actually at fault in bringing on the combat, and many other circumstances may enter into the question, such as the ability of the party to defend himself, or of the bystanders to avoid any serious injury being done, etc. When the defendant has used a deadly weapon, such as a pistol, resulting in the death of one who is not assailing him, there is every reason for the welfare of the peace of society, and for the safety of human life, that he be called upon to justify the use of such vigorous means. Any other application of this doctrine may furnish a screen for revenge, or a mere desire to punish one for striking or fighting a friend.
In civil cases the plaintiff is not bound to prove his case beyond a reasonable doubt, but only by preponderating testimony, and therefore it frequently happens that the burden will be cast upon the defendant in them when it would not in criminal cases. When the defence in civil cases amounts to a confession and avoidance, the burden is almost universally on the defendant. It may be true that generally such a defence is made under a plea of that character, but if the form of action permits such defence to be made under the general issue, or if the evidence is admitted under that without objection, it does not change the effect of the evidence. If Johnson had survived his injuries and had sued the defendant, undoubtedly the burden would have been on the latter to show justification, and we can see no valid reason why there should be any distinction in this respect between a suit brought by the party, if he survives, and one brought by those authorized to sue under the statute if the injuries result in his death. In both instances the plaintiff must prove a prima facie wrongful act.
We find very few authorities on the question of the burden of proof in cases of this character. Nichols v. Winfrey, *484
79 Missouri, 545, is the principal one relied on by the defendant. In that case the decision was largely based on the form of the pleadings, but it is easily distinguishable from this when we see from the opinion "that the facts on which the defendant could base his claim of self-defence were mainly disclosed by the plaintiff in developing her own case. They were so inseparably interwoven in the circumstances and incidents of the homicide as not only to constitute part of the res gestae,
but were included within the plaintiff's proofs descriptive of the offence itself." As we have seen, there was absolutely nothing in the plaintiff's testimony to show any justification, and the defence set up by the defendant himself was a new, affirmative fact — that he did not intend to shoot Johnson, and shot to frighten him because he believed Reynolds was in danger, etc. In Tiffany's Death by Wrongful Act, section 64, it is said that "the law of self-defence is the same as in a criminal prosecution for homicide, except that the burden does not rest upon the plaintiff of proving the case beyond a reasonable doubt. The plea of self-defence does not cause the burden to shift." He cites Nichols v. Winfrey as authority for the statement, and it will be noticed that apparently he regards the burden in criminal cases to be on the prosecution throughout, which we have already said we do not think correct. In March v. Walker,
We have not discussed the form of the twelfth prayer, but only the principle involved in it. If it stood alone, it might possibly be said that it was liable to mislead the jury, but, when taken in connection with the other prayers which were granted and the conceded facts, we do not think it was liable to that objection. We fully recognize, as we have endeavored *486 to show, the general principle that the burden was on the plaintiffs in this, as in other civil cases, to first establish their case by proper proof, but, that having been done the burden was then on the defendant to prove the justification or excuse which he set up as his defence. We are therefore of the opinion that the ruling on this question by the Court below was right, and there was no error in granting either of these prayers.
3. The next alleged error complained of was rejecting the second and third prayers of the defendant, which raised the question of contributory negligence. The authorities seem to agree that the doctrine of contributory negligence can have no application when the action is founded on intentional violence.Kain v. Larkin, 56 Hun. 79; Gray v. McDonald, 104 Mo. 313; Louisville, etc., R.R. Co. v. Mackie,
To sustain the theory of either of these prayers would prevent recovery against any one who claimed to kill another in defence of his servant or member of his family, although the evidence utterly failed to excuse the defendant's act. For if the fact that the deceased party was attacking the servant or member of the family is evidence of such negligence or wrongful act as to be said to directly contribute to the injury causing his death and thereby prevent recovery, that would be the end of such cases. To justify the killing, the facts we have already stated must be shown, but these prayers, if granted, would in such cases obviate the necessity of showing just what the law says is necessary to be proven to excuse the defendant. So, without discussing or referring to other reasons, we think they were properly rejected.
We do not understand that the appellant presses the exception to the rulings on the prayers in regard to damages. Those granted seem to cover the question, and to have properly instructed the jury as to the correct measure *488
of damages. Hauer's case,
Judgment affirmed, costs to be paid by the appellant.
(Decided June 22d 1899).
Dissenting Opinion
I agree with every proposition, save one, announced in the very lucid and carefully prepared opinion written by JUDGE BOYD; and the proposition from which I am constrained to dissent is that which relates to the burden of proof. It is presented by the instructions numbered one-and-a-half and twelve. The twelfth instruction lays down this doctrine, namely: If the jury find that the defendant "fired his pistol towards Uriah Johnson * * * * * and shot and killed him, then the burden is upon the defendant to satisfy the jury by preponderating proof of any justification or legal excuse for said shooting." Thus, in explicit terms and unequivocally, the burden of proving thecharacter of the act of killing is at the outset of the case put on the defendant to exculpate himself; whilst, as I read the statute and understand the rules of evidence, that specific burden is placed on the plaintiff to inculpate the defendant, or the latter cannot be made liable at all.
The question is not whether the plaintiff has furnished or complied with the burden of proof, but whether he is required to furnish it. If he is, then the Court ought to have told the jury, as matter of law, that the burden was on the plaintiff. It may be true, in point of fact, that the burden was gratified by competent evidence; but none the less, the defendant was entitled to have the jury rightly instructed on the law as to where the burden rested. What quantum of evidence meets the burden, is one thing; where the burden rests, is quite another thing. One — the preponderance of fact — is for the jury; the other — a rule of law — is for the Court to determine. If wrongly determined it is reversible error. *489
This is a new cause of action, unknown to the common law. 8Am. Eng. Ency. (2nd ed.), 858, citing Seward v. VeraCruty, L.R., 10 App. 59. It is the creation of a statute, CodePub. Gen. Laws, Art. 67, § 1; and the conditions which must exist to warrant a recovery upon it are those, and those only, which the statute prescribes. It arises when negligence, or when a wrongful act has produced death. But, be the act relied on negligent or wrongful, it must be alleged, and more than that, it must be established by evidence. Whatever the kind of evidence required may be, it must be supplied by the party on whom the affirmative rests. In all cases of negligence, except when otherwise provided by statute, and even in the rare instances where the doctrine of res ipsa loquitur applies, more than the fact of an injury must be shown. Negligence, either active or passive, must be established and established as the efficient cause. Negligence, if the asserted ground of recovery, is never assumed as the cause of the injury; nor is it inferred from the mere fact of injury. Balto. Elevator Co. v. Neal,
I fail to see any satisfactory reason for such a difference as to where the burden of proof should rest. Certainly, the Legislature has not made the difference. Had the Legislature, in giving this new cause of action, intended to cast upon thedefendant the burden of proving that the act occasioning the death was not wrongful, instead of requiring the plaintiff to show that it was wrongful, it would have said so, as it did say in Sec. 198, Art. 23, of the Code, when dealing with a kindred subject. The section just alluded to provides that railroad companies shall be liable for injuring live stock on their tracks, unless the company shows that the injury was accidental. But no such rule of evidence has been prescribed with respect to the cause of *491 action now before us; and the very fact that the rule of evidence has been changed in the one and not in the other instance is, of itself, sufficient to indicate that the General Assembly did not intend to shift the burden of proof in a case like this, but did intend to leave that burden on the plaintiff.
The twelfth instruction puts out of view all question ofintent on the part of the defendant, segregates the act of killing from all the attendant and surrounding circumstances, and lays down the legal proposition that the fact of the killing — no matter why the killing was done — is sufficient evidence, until rebutted or explained by the defendant, to show that when done it was wrongful. I agree that in a criminal case theintent to commit a homicide may be inferred from the very fact of firing a bullet that causes the death of a person; Allen v.The United States,
If you say that every taking of human life is unlawful unless justified or excused, I agree, certainly, as respects criminal proceedings; but I retort, as respects civil proceedings, three things: First, that what you say is nothing more than a statement that all unlawful taking of human life is wrongful; second, that the very statement you make concedes that there may be a taking of life which is not wrongful; *493 and third, that as your right of action depends, not upon the mere taking of life, but upon the wrongful taking of it, you must show the wrongfulness by excluding the justification. You do not show the wrongfulness by simply showing the fact without excluding the justification, because the concession that a justification would relieve the act of being wrongful, compels you, when you rely on the act as being wrongful to exclude that which would prevent it from being wrongful; otherwise you leave it in a position where it may or may not be wrongful. If it may or may not be wrongful, and therefore is perfectly neutral as you leave it to the jury by your instructions, how can you recover, when your right to recover depends, not upon an uncertainty as to the character of the act, but upon your proving that the actwas wrongful?
I distinguish between the presumptions which, in the first instance, supply the place of proof in criminal procedure, and thus cast upon the accused the duty to explain; and presumptions permitted in a private civil action for damages. An indictment for murder includes a trespass with force and arms, where the State steps in to vindicate the outraged law. Punitive justice is applied to injurious actions proceeding from malignity of purpose, or from criminal recklessness implying such purpose, and not to physical actions merely. "The presumptions which belong to criminal cases are those natural and popular presumptions which are only observations turned into maxims, like adages and apophthegms, and are admitted in the place of proof, where better is wanting, but are always to be overturned by counter-proof." 2Burke's Works, 623. Presumptions which appertain to civil cases are essentially of artificial contrivance. In dealing with questions of evidence in such cases, the Legislature may always ordain certain methods, by which alone it will suffer facts to be known and established; because their very essence, for the greater part, depends on the arbitrary conventions of men. Men "make fictions of law and presumptions of law, according to their *494 ideas of utility, and against those fictions and against presumptions so created, they do and may reject all evidence." 2Burke's Works, 623; 3 Mascardus, De Probationibus Con., MCCXXV. 111, as cited, Wills Cir. Ev., 21. I might elaborate by illustrations these fundamental differences, but one will suffice. As all men, indeed, as the great majority of men, are not guilty of crime, it is a natural presumption that every man should be considered innocent until proved guilty beyond a reasonable doubt, not by a preponderance of evidence but to a moral certainty, but there is no such presumption, in fact, no presumption at all adopted in favor of a defendant in a civil action, and no such measure of proof required to fix a liability on him, since a mere pre ponderance of evidence is all that is needed. With as much propriety could this presumption of innocence, and this measure of proof, to a moral certainty, be imported from the criminal law into the law governing a civil procedure, as can the presumption of wrongful intent, arising from the use of a deadly weapon, be borrowed from the same source and be arbitrarily applied, by judicial adoption, in a suit under this particular statute. The two classes of cases — criminal and civil — are essentially different; the presumptions allowed in each have different origins; and the fallacy of the twelfth and the one-and-a-half instructions seems to me to lie both in the failure to recognize the dissimilarity of the grounds upon which presumptions are founded in these two classes of cases; and in the assumption that a presumption available in one, is because available there, necessarily available also in the other.
The vice of the twelfth and the one-and-a-half instructions is not cured, in my judgment, by any other instruction given by the trial Court. As I understand the opinion of the majority, it concedes that the twelfth instruction standing alone would be wrong, but it holds that the error is corrected by the other instructions. If thus corrected or cured it must be because the latter — the other instructions — present an opposite proposition, that is, a correct *495 proposition, on the burden of proof, the only subject with which the twelfth instruction deals. If the other instructions do not present an opposite proposition or do not relate to the burden of proof at all, then, obviously they do not cure the vice of the twelfth. If they do present an opposite proposition, and thus relate to the burden of proof, then there is an inconsistency and conflict between those instructions which are right, and the twelfth which is wrong; and this, of itself, would require a reversal. But the twelfth and the one-and-a-half are the only ones which relate to the burden of proof. The other instructions all deal with entirely different subjects. How, then, can these latter, when they have no reference to the burden of proof at all, cure a defective statement of law as to the burden of proof in the only instructions which do relate to the burden of proof? The silence of all the other instructions on that subject — and they are absolutely silent — does not remedy a palpable error on that precise subject in totally different instructions pertaining solely and exclusively to that subject. The correct instructions cannot cure the incorrect ones, when the latter have no relation to the former, and are wholly independent of them.
(Filed June 22d 1899).