Tucker v. State Ex Rel. Johnson

Boyd, J., delivered the opinion of the Court. 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 cf 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 lor 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 deféndant 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.” i. 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 bona fide 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 ex *477 cuse 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, 66 Md. *478 70, this character of testimony was considered, and it was there said : “ There are, however, cases where all the facts cannot be detailed to the jury, which are necessary for a proper understanding of the subject. * * * But where the facts can be adequately exhibited to the jury it ought to be done without admitting the evidence of opinion.” Without, citing other authorities we think it would be a dangerous practice to permit such questions as the one proposed and are of the opinion that it is not such as are authorized. 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 ahvays 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 zurongfully 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 shoot *479 ing, 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 f 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 moritiir 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 toi make out a prima facie case of wrongful killing, 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. Freeh’s case, 39 Md. 574; Hauer’s case, 60. Md. 462; Steever’s case, 70 Md. 75, and many others that might be cited. So, although, by the terms of the statute the plaintiff in such cases can only recover by proving that the death of the person was caused by the negligence or default of the defendant, the defendant has the burden cast on him to prove that the proximate cause of the injury was the negligence of the deceased, and that, too, notwithstanding the plaintiff is required to prove, as a part of his case, that the negligence of the deceased did not directly contribute to the injury. It is true that the latter may be satisfied by the presumption of due care, and the known and ordinary disposition of men to guard themselves against danger, when the plaintiff’s testimony as to the accident does not show affirmatively that the deceased did directly contribute to the injury, but as the plaintiff has made out a prima facie case, and the defendant seeks to excuse himself from the effect of his negligence by showing that the deceased directly contributed to the injury, he is in the position of practically confessing and avoiding the plaintiff’s case, and therefore has. the burden on him. When, then, we come to consider the other ground of recovery allowed by the statute — the wrongful act of the defendant — if the plaintiff makes out a prima facie case, and the defendant admits the killing, but undertakes to justify or excuse his act, why should not the burden be on him to show justification or legal excuse ? There can be no doubt about the fact that these plaintiffs did make out a prima facie case of the wrongful shooting of Johnson by the defendant. If it *481 be conceded that the mere fact that one man shoots and kills another without any evidence of the circumstances under which it is done, does not necessarily place the burden upon the former to prove justification, or legal excuse, can there be any doubt about ft, under such circumstances as are in this case ? The evidence offered on behalf of the plaintiffs was to the effect that the shooting was wrongful and without the slightest justification or excuse, and according to that, even the clubbing of Reynolds by Johnson, relied on by the defence, had ceased before Tucker fired his pistol. If the case, had been submitted then, there was no evidence, so far as appears in the record, which would have justified the Court in submitting to the jury any question of justification or excuse, as there was none legally sufficient to sustain such a theory. The defendant and several of his witnesses testified that Johnson was still beating Reynolds when he fired, and we have already given his statement of what was occurring at that time. He also said that he shot to frighten Johnson and keep him from beating Reynolds, and that he had no intention of shooting him. He admits that after the shooting he and several others were striking at Johnson, and that he thought he ought to be punished. After Reynolds had gone on the store porch, and Johnson had started away with his wagon and horses, he ran after him and threw stones at him— some of the witnesses said he knocked Johnson off the horse with a stone. This was after Johnson was shot, and although defendant says he did not know then that he had shot him, his conduct and some expressions used by him show very clearly how he felt towards him. Whether he fired towards Johnson merely to frighten him or with the intention of shooting him, there certainly was not the slightest justification for it, unless the beating of Reynolds, was a sufficient excuse. When he shot there were a number of persons present, most of whom were apparently the friends of defendant and Reynolds. No one suggested that Johnson was armed with anything but the club. The day *482 before the shooting Tucker was present when Johnson and Reynolds had a fight, and. Reynolds knocked him down twice with his fist — Johnson knocking him down once with a stone. There was a very little to base the defence of justification on, and it would doubtless have been difficult to satisfy the jury that it was necessary to resort to such dangerous means of stopping the fight or protecting Reynolds, when it might probably have been done by more peaceful means. But, however that may be, it is not pretended that the defendant was justified in shooting unless he bona fide believed that Reynolds would be killed, or suffer grievous bodily harm, that the only way to prevent such consequences was to fire his pistol, and that he had reasonable grounds for his helief. The pertinent question, therefore, to be determined, is whether the burden was on the defendant to establish these facts. Although there is considerable conflict on the subject, the weight of authority, and what seems to us to be the most reasonable and the safest rule for the good of society, is that even in criminal cases, when the State has made out a case which shows the defendant’s guilt beyond a reasonable doubt, and the prisoner sets up an affirmative defence, such as self-defence, as an excuse for the act, the burden is on him to establish it by preponderating evidence. In Com. v. York, g Metc. 93, Chief Justice Shaw delivered an able and comprehensive opinion on the subject, in which many authorities are collected. See also Wharton's Criminal Evidence, section 331; State v. Schweitzer, 57 Conn. 532; State v. Barringer, 114 N. Car. 840; Com v. Choate, 105 Mass. 451; People v. McCarthy, no N. Y. 316; Browu v. State, 83 Ala. 33; Smith v. State, 86 Ala. 28; Mitchell v. State, 22 Ga. 211. Under these authorities, and many others that might be cited, in a criminal prosecution the burden would clearly have been on Tucker to prove justification under such evidence as there is in this case. 1 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 biought 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. Win *484 frey, 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, 48 Texas, 377, it was said, “In this, as in every other case, it devolves on the plaintiff to establish his case, viz., that the killing was wrongful. If the evidence fails to show a wrongful killing, but, whilst establishing the act of killing, developed that it was done in a justifiable exercise of the right of self-defence, it is scarcely necessary to say that the instruction was wrong.” With that we find no fault, as it is practically what we have already said, but where the burden is, under such facts as we have before us, is another question. In Brooks v. Harlan, 65 Cal. 421, it was held that the burden was on the defendant to show that the shooting was done in self-defence, although there the answer was treated as equivalent to a plea in confession *485 and avoidance. In Darling v. Williams, 35 Ohio St. 58, which was an action for death caused by shooting, the Court said that the case was to be tried in the same manner and governed by the same principles of law as if the party had not died from his injuries and was suing for damages. These are all the authorities for suits brought .for deaths caused by the intentional acts of the defendants, to which we have been referred, as at all reflecting upon this question, and we have not been aided much by them in reaching a conclusion, as this case presents different controlling facts. If the plaintiffs testimony had presented any facts from which justification or legal excuse for the shooting was shown, or could properly be inferred, then the case would have been different, but it did not, and the defendant sought to excuse himself by trying to convince the jury that he believed Reynolds was in imminent danger, that the only way to protect him was to shoot at, or towards, Johnson, and that he had good grounds for that belief and acted on it. It was not merely a question as to whether Johnson was still beating Reynolds, when defendant fired, which, as we have seen, was the real difference between the witnesses, but the defence depended mainly upon the belief of the defendant, his object in shooting and the necessity for it. He thus set up distinct, affirmative matters of defence, which, under all the rules of evidence applicable to civil cases, he was required to establish by preponderating evidence, to meet the case proved by the plaintiffs, of the wrongful killing of Johnson. We might have referred more particularly to the presumption which the law raises when deadly weapons are used, and to other matters, but this part of the opinion is already longer than desirable. We have not discussed the form of the twelfth prayen 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 en *486 deavored 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, 103 Ala. 160 ; Darling v. Williams, 35 Ohio St. 63 ; Steinmetz v. Kelley, 72 Ind. 442. But the appellant contends that, conceding that to be so, there was some evidence tending to show that the injury happened through his negligence, and therefore instructions on contributory negligence were relevant. If that be admitted, these prayers were properly rejected for several reasons. In the first place there is no evidence that Johnson was guilty of any negligence. The whole theory of the appellant’s defence was that he was making an unlawful assault on Reynolds, and we confess we do not understand how it can be said that he was negligent. There is certainly no evidence to show that any act of his was the proximate cause of his death, but that was directly caused by the act of the defendant, and the question is whether that was excusable. The instruction asked for in the second prayer was simply another way of saying to the jury that the defendant was justified in shooting, if he believed it necessary for Reynolds’ protection, and shot by reason of that belief, although the jury found that such belief was not justified by the facts in the case, if they believed that Johnson was beating Reynolds. For in point of fact Johnson did nothing that could be *487 claimed to be either negligence or a wrongful act, except beat Reynolds. That prayer is not only contrary to law, but to the theory on which the case was tried on both sides. The third prayer is to the effect that, if the jury found that defendant fired his pistol to frighten Johnson, without intending to shoot him, and that he killed him, either by his unskilfullness or negligence, or because his arm was seized at the time, then the verdict must be for the defendant, if the jury further found that Johnson, by his own negligence, or wrongful act, contributed to the accident. There being, as we have seen, no evidence of negligence or wrongful act by Johnson, unless it be his beating Reynolds, this prayer is equivalent to saying that if the jury believed that Johnson was killed by the defendant through the latter’s negligence, or because his arm was seized at the time he fired the pistol, the plaintiff could not recover, if they believed that Johnson was then beating Reynolds. 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 meas *488 ure of damages. Hauer's case, 60 Md. 449 ; Mahone's case, 63 Md. 135. The judgment will be affirmed. (Decided June 22nd, 1899). Judgment affirmed, costs to be paid by the appellant.