Perkins v. Wilcox , 294 Mo. 700 ( 1922 )

This action was commenced by plaintiff, as the widow of W.C. Perkins, deceased, in the Circuit Court of Polk County, Missouri, and transferred by change of venue to Christian County.

The first count of the petition alleges that plaintiff is the widow of said W.C. Perkins, who departed this life on April 8, 1919, leaving said plaintiff and four small children; that on the ____ of December, 1918, her said husband contracted influenza and, by reason thereof, was confined to his bed from said date until the 8th day of January, 1919; that on said last mentioned date, he was improving physically, and convalescing rapidly, so that he would have recovered from said illness, if defendant had not committed the acts hereafter alleged; that on January 8, 1919, defendant wrongfully and maliciously, knowing that said W.C. Perkins was sick as aforesaid, caused the constable of Marion Township, Polk County, Missouri, to go to the home of plaintiff and her said husband, and wrongfully and maliciously caused, instigated, encouraged and aided said constable to make an assault on her husband's father, by shooting him with a loaded revolver in the presence of her said husband, and also instigated the arrest of her husband's father by said constable; that by reason of the foregoing, and the belief of her husband that his father had been shot and fatally wounded, and owing to her husband's weak physical condition at the time, he became greatly agitated, nervous and excited; that by reason of the foregoing, her husband was compelled to drive from their home, unassisted, improperly wrapped and clothed, in a buggy, in cold, damp, windy weather, a great distance; that by reason of his excitement, agitation and nervousness, caused by defendant's acts aforesaid, and by reason of his exposure aforesaid, the disease from which he was then suffering, was aggravated, its virulence increased and finally caused his death on April 8, 1919; that by reason of defendant's conduct aforesaid, and the death of her husband, she lost the aid, support and comfort of the latter; that he was thirty-two years of age, possessed splendid habits, and contributed annually from $600 to $1,000 to the support of his family. Said first count concludes with a prayer for $10,000 actual damages, and $15,000 punitive damages.

The second count of petition is practically the same as the first, except it charges that the acts of defendant complained of "contributed to and hastened the death of her husband, by reason of which she lost his aid, support and comfort."

Defendant demurred to each count of said petition, and his demurrers thereto were overruled.

The answer to the first count contains a general denial. It also alleges that all of the constable's acts were performed as a part of his duties, as such constable, in the service of the writ of execution, then in his hands for service, and in the necessary defense of his person from danger at the hands of deceased's father, etc. Defendant's answer to the second count of the petition was similar to the one filed as to the first count.

It appears from the evidence that defendant was the owner of about 370 acres of land near Pleasant Hope, in Polk County, Missouri; that in the spring of 1918, respondent and her husband rented a part of said land, and were to vacate the same when the crop thereon was made; that on January 8, 1919, they were still occupying said premises; that on their failure to vacate the same under the agreement, defendant commenced an action in the justice's court of Polk County, to recover possession of said land; that on December 11, 1918, he recovered a judgment against plaintiff's husband for the possession of said premises, for $25 as damages, and for the costs incurred in said action; that an execution was issued on said judgment, on said December 11, 1918; that at this time, some of respondent's family were sick with the influenza, so that appellant waited until January 8, 1919, after hearing that respondent's family had recovered or were recovering from illness, before he attempted to have said execution enforced; that on said last named date, the appellant went, with Thad Evans, the constable of that township, to the premises aforesaid, to see whether respondent and her husband had vacated the same; that Evans took with him the execution aforesaid. When they arrived at said land, they found respondent and her husband were preparing to move; that they had nearly all their goods loaded into the wagons; that respondent's husband was up and dressed, ready to drive away in a buggy then standing in the yard. On their arrival at the farm, they found J.M. Perkins, the father of respondent's husband, out in the yard. The constable asked him where his son was, and the father told him he was in the house. The constable then went into the house to see W.C. Perkins, the husband of plaintiff; that appellant unhitched his horse and took it to the barn, about forty or fifty yards from the house. When the constable went into the house, he found practically everything loaded for removal, so he said nothing to them about vacating the place, but did talk to respondent and her husband about the payment of the costs, called for in the execution. While they were talking over this subject, respondent's father-in-law, J.M. Perkins, came into the house, and told his son not to pay any attention to the constable, that he did not owe anything. After some further quarrel, between the constable and J.M. Perkins, they engaged in a fight or scuffle, in the room where plaintiff's husband was sitting. There is some controversy as to how the fight actually commenced, but they clinched, Perkins got the constable on the floor, took his pistol away from him, ordered him out of the house and with the constable's pistol in his hand, marched him out of the door, on to the porch, and then ordered him off the place. As the constable stepped off the porch, he got another pistol out of his pocket, and shot J.M. Perkins, but did not kill or seriously wound him. During all this trouble in the house, appellant was some distance away at the barn, and knew nothing about what had occurred, until Rome Clark, who was helping to move plaintiff and family, came to the barn and told defendant that J.M. Perkins had the constable down on the floor of the house, was liable to hurt him, and advised appellant to go up and separate them; that appellant said he did not want to do it, and asked Clark to do so, and the latter declined; that appellant and Clark both started towards the house, and when they got near the house Evans came out first, and Perkins was behind him with a gun in his hand following him; that Perkins was the only one that said anything; that when Evans came off the porch he turned and shot Perkins; that appellant, at this stage of the proceeding, while thirty or forty feet away, called to the constable to shoot him again, but, instead of doing so, he told Perkins to drop his gun, and the latter did so.

J.M. Perkins testified that the constable was talking to his son about the costs, in an ordinary tone of voice, and in a gentlemanly way, when he told the son not to pay any attention to the constable; that the barn was at least forty or fifty yards from the house. Witness testified that, when he heard the talk about the costs, he said to his son: "Here, Billy, you are getting shook to pieces. You are getting all tore up. Don't pay no attention to this fellow;" that he also told him, "You don't owe them anything." He further testified: "After I throwed him down and took the gun away from him, I told Mr. Evans not to say anything more to my son. After I took the gun away from him, I said, `Get away from here and let my son alone.'" This witness also testified that after he took the gun away from the constable he followed the latter out on the porch, and the constable got off the porch; that he still had the constable's gun in his hand, ordered him to leave the place, and then the constable shot him. He said appellant was about forty feet away, under the pump, when he told the constable to shoot witness.

There is nothing in the record tending to show that appellant had any reason to anticipate any difficulty until he was told of the trouble by Clark. The evidence is undisputed that after the difficulty respondent's husband voluntarily hitched his horse to the buggy, got into the latter, without any suggestion from anyone, and, of his own accord, drove a quarter of a mile to Gihnore's, where his wife and children had gone, and stayed there all night.

The shooting occurred on January 8, 1919, and plaintiff's husband did not die until April 8, 1919.

In order to avoid repetition, we will consider the remaining facts, the instructions and rulings of the court, as far as necessary, in the opinion.

Nine of the jurors returned a verdict in favor of respondent on the first count of petition for $10,000, as actual damages, and $10,000 as punitive damages, but made no finding as to the second count of petition. Judgment was entered accordingly. Defendant, in due time, filed motions for a new trial and in arrest of judgment. Both motions were overruled, and the cause duly appealed by him to this court.

I. This case seems to have been tried by the court, and counsel for respondent, in utter disregard of either the statute or common law. There could be no recovery in a death case under the latter, for the obvious reason that a personal right of action dies with the person. Considered as a suit under the statute, the maximum amount of recovery in a death case is $10,000, and yet the plaintiff sued for $25,000 and the court actually permitted a judgment to be entered for $10,000 as compensatory damages, and a like amount for exemplary damages. The death of plaintiff's husband occurred on April 8, 1919, and we will dispose of the case as a statutory action, under Sections 5426 and 5427, Revised Statutes 1909, now Sections 4218 and 4219, Revised Statutes 1919.

II. It is contended by appellant that, at the conclusion of all the testimony in the case, the trial court should have sustained his demurrer to the evidence, and directed a verdict inDemurrer his behalf. Section 4218, supra, provides that:to Case.

"Whenever the death of a person shall be caused by a wrongful act, . . . and the act . . . 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, . . . the person who . . . would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured."

The person who may sue and the amount of recovery are determined by Sections 4217 and 4219, Revised Statutes 1919. In the first count of the petition, it is charged that defendant's wrongful acts caused the death of plaintiff's husband. Nine of the jurors returned a verdict for plaintiff under said first count for $10,000 actual and $10,000 punitive damages, but the jury made no finding as to the second count, which charged that the acts and conduct of defendant contributed to and hastened the death of plaintiff's husband. It is asserted by counsel for respondent in their brief (p. 12) that "the jury in effect found for appellant on said second count."

The facts are set out very fully heretofore, and need only be referred to in a general way. The evidence is undisputed that appellant was the owner of the real estate in controversy; that he had reserved the use of a room in his dwelling house thereon occupied by plaintiff and her husband, and was therefore lawfully on the premises; that on December 11, 1918, a judgment was entered in favor of this defendant, against W.C. Perkins, the husband of plaintiff, for the possession of said premises, for $25 as damages, and for costs amounting to $8.10; that on said December 11, 1918, a valid execution was issued on said judgment, and delivered to T.S. Evans, the constable of Marion Township in Polk County, Missouri; that said execution directed said constable to dispossess said W.C. Perkins, to deliver possession of said premises to this defendant, and to collect from said W.C. Perkins the damages and costs aforesaid; that on the morning of January 8, 1919, before said constable and defendant arrived at said premises, J.M. Perkins, the father of plaintiff's husband, and one Rome Clark, had reached said premises with wagons, and had loaded thereon nearly all the goods of plaintiff and her husband, with the view of moving them from said place on that morning; that the horse was hitched to the buggy for plaintiff's husband to use in leaving, or was harnessed, ready to be hitched to said buggy; that plaintiff, her husband and those hauling the goods were nearly ready to leave when defendant arrived, and would have been gone in thirty minutes from said premises, except for the temporary subsequent delay. When the constable and defendant arrived, J.M. Perkins was in the yard. The constable told him he wanted to see his son, W.C. Perkins, and asked where he was. J.M. Perkins replied that his son was in the house, and told the constable how to get in. The defendant took no part in this conversation, unhitched his horse, and took it to the barn forty or fifty yards distant; and knew nothing of what occurred in the house between the constable and J.M. Perkins, until Rome Clark came down to the barn hallooing at the top of his voice and told him that old man Perkins had the constable down, and might hurt him. He advised defendant to go up and separate them. Finally, Clark and defendant started toward the house, and when they got within thirty or forty feet of same, the constable came out of the house, pursued by J.M. Perkins, with a pistol in his hand, who was then shot by the constable, with the second pistol which the latter retained in his possession. Plaintiff's husband was still in the house where the combat between the constable and his father took place. Up to this point, the defendant had not been in the house, had no conversation with plaintiff's husband, had not seen him, did not know where he was, nor did he know what his physical condition was at that time. The defendant had absolutely no connection with what occurred in the house before the shooting, nor was he in any manner responsible therefor. On the other hand, J.M. Perkins illegally and wrongfully interfered with the constable, while the latter was performing his duty in a legal and proper manner. [Sec. 3147, R.S. 1919; State v. Dickerson, 24 Mo. l.c. 368.]

In the latter case, RYLAND, J., speaking for this court, said: "The law has pointed out the mode of carrying on the public justice of the country; officers are elected or appointed to execute the judgments of our courts, and they are clothed with certain power and authority, and they are required to perform certain duties. The person then who obstructs or resists such officer in performing his duty rises up against the power of the State, and should be punished for his crime, not like a mere trespasser on the rights of another person or on his property, but as one who disregards the well-being and good of the government of his state."

The father of plaintiff's husband was not a renter upon said place, and even if he had been the writ in possession of the constable directed the latter to deliver possession of same to the defendant, and therefore the father had no legal right to interfere with the constable in the performance of his duty. The father did not inform the constable that his son was sick, and ask him to desist from discussing the costs with him under such circumstances, but in an angry manner ordered his son to ignore the officer, and thereby commenced the controversy heretofore mentioned. We are of the opinion that the father of plaintiff's husband deliberately and unnecessarily brought on a difficulty with the constable in the presence of his sick son, whom he said was then "shaken up," without the semblance of excuse therefor. The constable was making no effort to remove any of the parties from the premises, as he knew they were practically packed and ready to move. In a proper and gentlemanly manner, he was discussing the question of costs with plaintiff and her husband, when the father appeared upon the scene, and precipitated a controversy with the constable which was well calculated to excite his son and make him nervous. If the plaintiff ever had a cause of action of any kind, growing out of the disturbance in the house, in the presence of her husband, it was against her husband's father and not against this defendant.

Turning to the evidence, we find that plaintiff introduced five doctors, as experts, to prove that defendant's wrongful acts caused the death of plaintiff's husband. As a sample of the questions propounded to said experts, we quote from the record the one propounded to Dr. Homer Young, which reads as follows:

"Q. I'll ask you whether or not if a man was sick with flu, had been sick something like thirty days, had been delirious part of the time, had been confined to his bed a greater part of the time, had become improved so that he could set up at short times and an officer should come to his house to put him out; while there in his presence the officer should attempt to forcibly put the sick man's father out from the room in which they were, and they should engage in a struggle in the presence of the sick man, and the constable should shoot the father and the other man should holler, `Kill! Kill! Shoothim!,' whether or not the excitement would cause a decrease in his vitality and resisting powers?"

The only part of said question relating to defendant's conduct is the italicised portion. A timely and proper objection was made to the above question, and improperly overruled. Leaving out of consideration the conduct of defendant in telling the constable to shoot J.M. Perkins after he had forced the constable from the house at the point of a gun, while plaintiff's husband was still inside the house, it will be seen hat the controversy between the constable and the father in the house was improperly treated as the act of defendant, and that the legal effect of the latter's act, based on his own conduct, was never submitted to either the experts or jury. Dr. Young answered the above inquiry as follows:

"A. Well, I would like to know further if there were any complications arising from this flu.

"Q. None stated.

"A. I would have to answer that question rather limited. As a general rule any excitement will tend to make his condition worse."

The father said to his son, when he entered the house and found the constable talking to him: "Here, Billy, you are getting all tore up. Don't pay no attention to this fellow." It is pertinent to inquire what part of the son's excitement was attributable to the alleged wrongful acts of defendant, which it is asserted caused the death of plaintiff's husband? The question propounded to the experts were improper, because they contain material matters based upon the acts of other parties, and for which the defendant was not responsible. The questions and answers were purely speculative in their nature, based upon mere conjecture, and appellant's objections thereto should have been sustained. [O'Malley v. Railway, 113 Mo. l.c. 325; Warner v. Railroad,178 Mo. 125; McGrath v. Railroad, 197 Mo. l.c. 104-5; Swearingen v. Railroad, 221 Mo. 644; Fritz v. Railroad, 243 Mo. l.c. 79-80; Grant v. Railway Co., 190 S.W. l.c. 589-90; Phillips v. Travelers' Ins. Co., 231 S.W. (Mo.) l.c. 950.]

III. The evidence shows that plaintiff's husband, on the morning of January 8, 1919, was feeling well enough to get up and dress himself preparatory to voluntarily leaving defendant's premises; that his goods were practically all packed, his horse and buggy ready for departure, and that in less than thirty minutes from the time of defendant's arrival plaintiff and her husband would have moved, except for the quarrel and shooting which subsequently occurred. Within a short time after the shooting, plaintiff's husband came out to see his father and learned from the latter that he was not seriously hurt. Thereupon, plaintiff's husband hitched the horse to the buggy, got into the latter, and drove to Gilmore's, where his family had gone, one quarer of a mile distant. In other words, he left defendant's premises, shortly after the shooting, of his own accord, without any suggestion from either the defendant or constable, and left just as he would have done had neither the defendant nor the constable been present. It further appears from the evidence that he either drove, or was driven, around the neighborhood occasionally until February 27, 1919, when he developed a case of empyema, which is commonly called an abscess of the lungs; that he was operated on at that time for this abscess by the attending physicians; that he grew worse from that time on, until April 7, 1919, when a second operation was performed; that he died from the effect of said disease, on the following day, just three months after the trouble at defendant's premises.

It clearly appears from the testimony that defendant never saw plaintiff's husband on January 8, 1919, until after the shooting; that deceased was in the house at the time of said shooting, and was not in the presence of defendant; that defendant was not aware that plaintiff's husband was in the house, sick. Appellant knew the constable had an execution, which authorized him to turn over the possession of the premises to appellant, and to collect the damages and costs called for therein. After being informed by Clark that J.M. Perkins had the constable down on the floor and was liable to hurt him, defendant, with Clark, then started to the house and got within thirty or forty feet of same, when defendant saw the constable being ejected from the house by an intruder, with a gun in his hand, and hallooed to the constable to shoot him, which the officer did. It conclusively appears from the testimony, that plaintiff's husband received no physical injury at the hands of defendant. We are decidedly of the opinion that, even if defendant had been armed, and had actually shot J.M. Perkins, himself, instead of calling upon the constable to do so, under the peculiar facts of this case there can be no recovery. [Trigg v. Railway, 74 Mo. l.c. 153 and cases cited; Marshall v. Railway, 78 Mo. l.c. 615-6; Connell v. Western U. Tel. Co., 116 Mo. 34 and cases cited; McCardle v. Peck Dry Goods Co., 271 Mo. l.c. 120, 195 S.W. l.c. 1036; Francis v. Transfer Co., 5 Mo. App. 7; Strange v. Railway Co., 61 Mo. App. 586; Deming v. Railway Co., 80 Mo. App. 152; Snyder v. Railway Co., 85 Mo. App. l.c. 497; Grayson v. Transit Co., 100 Mo. App. 60; Glover v. Railroad, 129 Mo. App. 563; Crutcher v. Railroad,132 Mo. App. 311; Dye v. Railroad, 135 Mo. App. 254; Smith v. Pullman Co., 138 Mo. App. l.c. 245; McCardle v. Peck Dry Goods Co., 191 Mo. App. l.c. 264-5, 177 S.W. 1095; Dalzell v. Dean Hotel Co., 193 Mo. App. l.c. 391, 186 S.W. l.c. 44; 8 Ruling Case Law, sec. 80, p. 525, where numerous cases are cited, and most of which are here set out; Reed v. Ford, 129 Ky. 471; Braun v. Craven,175 Ill. 401; Miller v. Railroad, 78 Ohio St. 309; Spade v. Railroad, 168 Mass. 285; White v. Sander, 168 Mass. 296; Mitchell v. Railway, 151 N.Y. 107; Ewing v. Railway, 147 Pa. 40; Huston v. Freemansburg Boro, 212 Pa. 548; Morris v. Railroad, 228 Pa. 198; St. Louis Ry. Co. v. Bragg, 69 Ark. 402; Chapman v. Western U.T. Co., 88 Ga. 763; Kalen v. Railroad, 18 Ind. App. 202; Kagy v. Western U. Tel. Co.,37 Ind. App. 73; Lee v. City of Burlington, 113 Iowa 356; McGee v. Vanover, 148 Ky. 737; Wyman v. Leavitt, 71 Me. 227; Nelson v. Crawford, 122 Mich. 466; Western U. Tel. Co. v. Rogers,68 Miss. 748; Chittick v. Transit Co., 224 Pa. 13; Simone v. Rhode Island Co., 28 R.I. 186; Gulf Ry. Co. v. Trott, 86 Tex. 412.]

Tested by the principles of law declared in the Missouri cases supra, and re-inforced, as they are, by the other authorities cited, especially those italicised, we have no hesitation in holding, that on the facts disclosed by the record, in the absence of any physical injuries inflicted by the alleged wrongful acts of defendant, the plaintiff is not entitled to maintain this action. The foregoing authorities leave no room for cavil or doubt as to the correctness of our conclusion. She had no remedy at common law, and we do not believe the death statute relied on was ever intended to cover a case of this character. Aside from the foregoing, reverting to the merits of the controversy, we hold that there is no substantial evidence in the record tending to show any causal connection between the alleged wrongful acts of defendant and the death of plaintiff's husband, caused by disease three months after the shooting. In conclusion, we are of the opinion, that the facts herein, relating to the merits of the controversy, do not rise to the dignity of even respectable conjecture.

The judgment below is accordingly reversed. Reeves andWhite, CC., concur.