Brouster v. Fox

NORTONI, J. (after stating the facts). 1. It is insisted that the court erred in modifying appellants’ instruction by striking out the words, “to do' or cause to plaintiff such same or similar injuries which said third person did him,” and inserting in lieu thereof the words, “or encouraging or inviting him by their conduct to act with them in doing bodily harm to the plaintiff.” It is a well-settled principle that all persons, present and participating in an act of this nature, by either words of counsel and advice or gestures, looks or signs, or who — 723 — may in any way, or by any means, countenance and approve the same, are in law deemed to be aiders and abettors and liable as principals for such tortious acts. [Cooper v. Johnson, 81 Mo. 483; State v. Orrick, 106 Mo. 11, 17 S. W. 176, 329; Canifax v. Chapman, 7 Mo. 175; Page v. Freeman, 19 Mo. 421; Allred v. Bray, 41 Mo. 484; Murphy v. Wilson, 44 Mo. 313; McMannus v. Lee, 43 Mo. 206; Willi v. Lucas, 110 Mo. 219, 19 S. W. 726; Thomas v. Werremeyer, 34 Mo. App. 665; State v. Valle, 164 Mo. 539, 65 S. W. 232; State v. Gooch, 105 Mo. 392, 16 S. W. 892.] And a party may be charged with doing an act himself and held liable under such charge for being present and aiding and abetting the doing of the same. [Willi v. Lucas, 110 Mo. 219; State v. Valle, 164 Mo. 539; Murphy v. Wilson, 44 Mo. 313; Page v. Freeman, 19 Mo. 421.] And it is not necessary to prove such advising, counseling, aiding and abetting by positive and direct evidence, but such fact, like any other, may be established by circumstances. [State v. Gooch, 105 Mo. 392; Willi v. Lucas, 110 Mo. 219; State v. Valle, 164 Mr. 539.] On the other hand, one person cannot be held for the act of another in the commission of such trespass as aider and abettor or counselor and adviser unless there was a common purpose in the minds of the person sought to be held and the third party to inflict bodily harm on the complainant. [State v. Hickam, 95 Mo. 322, 8 S. W. 252.] Under the principle stated, there could be no doubt that Humber, the third party, who, according to defendants’ testimony,' inflicted the blow with the beer bottle, could be held either as ¡principal or as aider and abettor. But the precise question presented here is not the liability of Humber, the third party, but it is, Gan appellants be held for the wrongful act of Humber in their defense on the theory submitted in the amendment to the instruction; that is, that they were “encouraging or inviting him by their conduct to act with them in doing bodily harm to the plaintiff?” On this question there seems to be no doubt. Had ap — 724 — pellants then and there “encouraged or invited” Humber by express words to interpose the blow complained of, no one could argue that they would not be liable for the. consequences of his act in response to such invitation or encouragement and concert of action and common purpose would thereby be established beyond peradventure. Such concert of action being established as Avell by circumstances as any other fact, the case stands now as having been conclusively established to the effect that such appellants invited and encouraged Humber to strike the blow which involved common purpose and concert of action to the same effect; that is, to inflict “the same or similar injuries,” in the language rejected from the instruction by the court, of Avhich complaint is made. The question presented is not identical with that in State v. Meyers, 174 Mo. 353, 74 S. W. 862, relied upon by appellants, Avhere the third party voluntarily assumed to defend one being assaulted and for his Avrongful act the person assaulted was afterwards convicted and such conviction set aside in the Supreme Court. In that case, there was no evidence, either positive or circumstantial, tending to show a concert of action, the third party being a volunteer; whereas in the case at bar, the record abounds Avith such evidence tending to show a concert of action, and by the amendment to the instruction, the jury were virtually directed that if they found the appellants encouraged or invited Humber to strike the blow, this was in effect equivalent to, and in fact, was an act in concert and common purpose for Which appellants were responsible. In this, connection, it is proper to further direct attention to the matter of common purpose as pointedly put to the jury from appellants’ standpoint in their fourth instruction, as folIoavs : “Neither of these defendants can be lawfully held liable for such striking, on the theory that they acted in concert Avith that person, unless the jury believe from all the evidence that such one or more of the defendants had, together with such third person, at that time, a — 725 — common purpose to do some such injury to the plaintiff by striking him, or had knowledge of said other person’s said intent to strike and injure him; and they, or some one or more of them, did then some act of assistance or encouragement in furtherance of such purpose or intent of that person to strike and injure the plaintiff.” This instruction submits the question of acting with a common purpose and in concert squarely to the jury, and in view of these considerations, there was certainly.no error in modifying the instruction complained of. 2. It is insisted that the court erred in refusing appellants’ fifth instruction, which involved the principle that one member of a social “party has the right to interpose in the defense of a felonious assault being made upon another. This instruction was predicated upon the testimony of the defendants to the effect that while the affray was in progress, Humber, a member of the party other than appellants, ran in and dealt respondent a blow" on the head Avith a beer bottle which caused his most serious injury. There is no special principle applicable to the social company mentioned in the instruction any more than is applicable to the case of third parties generally. The principle sought to be in-' voiced is that Avhen great bodily harm is about to be inflicted by one person upon another, a third party is justified in exerting necessary force commensurate Avith the circumstances in preventing such threatened injury, in a proper case. There can be no doubt that this is a wholesome and salutary principle of the criminal law and on a proper state of facts, is applicable as well in a civil suit of the character of the case at bar. But the principle itself has its necessary and concomitant limitation; that is, that the party in whose favor, or in preventing an injury to whom, the third party interposes, must not be so at fault himself as to forfeit his right to use the'same force as is exerted in his behalf by the third person. Indeed, the principle is correctly stated by this court in an early case, where it is said: — 726 — “Whatever one may do for himself, he may do for another.” [State v. Foley, 12 Mo. App. 431.] And is thus conversely stated by an eminent authority (Kerr on Homicides, 1891, sec. 168) : “It is well established that what one may do in his own defense, another may do for him, if he believes life is in immediate danger, or if such danger and necessity be reasonably apparent, provided the party in whose defense he acts was not in fault.” This is certainly the correct doctrine on the subject, for it cannot be said that a third party can interpose and be justified in striking a blow in defense of another that would not have been justifiable if delivered by the party for whose defense it was leveled. The authorities are abundant. [Horrigan & Thompson’s Cases on Self Defense, 750; State v. Totman, 80 Mo. App. 125; State v. Reed, 137 Mo. 125, 38 S. W. 574; 1 Kerr on Homicides, 1891, sec. 168.] Applying the principle to the case before the court, it then becomes necessary to inquire whether or not appellants themselves would have been justified in inflicting the blow with the beer bottle under the facts as developed. It will be noted that the instruction says (under the circumstances therein predicated) : “Any member of this company had the right to use such force and to follow him up to such an extent as fairly and reasonably appeared to him from the facts and circumstances to be necessary to prevent him from further so striking any of said parties,” etc. The instruction, when construed in the light of the principle stated and the facts of the case, implies that the appellants themselves had the right to “follow him up” and inflict the blow with the beer bottle when he was retreating and no blow was necessary in their further defense, for had they declined to follow his retreat, they would have been in no danger from blows from the retiring conductor’s cashbox and no blow from the beer bottle would have been necessary. It is well settled, and reason indicates, that the right of self-defense does not imply the right of attack. Indeed, all of the evidence. — 727 — shows that the conductor retreated from near the center of the car, striking right and left with the cashbox while the appellants and a number of their companions were advancing, following and beating him. They certainly would have no right to “follow him up” and inflict the blow with the beer bottle and claim justification on the theory of self-defense, as the jury would have been so instructed had the court acceded to their request. The appellants themselves were at fault in following him, according to the language of the instruction, and they being at fault, their associate, Humber, who is alleged to have struck the blow, had no right to follow him up and strike the blow in their defense which would have been wrongful if struck by them. The court properly refused the instruction. 3. The answer pleaded that whatever injuries were received by the respondent were occasioned through his voluntarily bringing on the quarrel by his offensive language and conduct, in striking the first blow, and in furtherance of this plea, appellants’ evidence tended to show that the respondent, while striking at Menown, struck young Fox, son of one of the appellants, the first blow with the cashbox and thereby inflicted a severe wound upon him, and continued, while retreating, to strike right and left with the box at members of the party, and that it was in defense of themselves and their associates the injuries were inflicted upon him. All of the evidence for appellants, however, as' well as from the respondent’s witnesses, tends to establish and in fact does establish indisputably that the respondent retreated from the center to the extreme end of the car and until he could retreat no further. All of his injuries were inflicted while he was in the act of retreating and finally in a prostrate condition in the corner of the car with a number of the party beating him and others endeavoring so to do. The sixth instruction, requested by appellant and refused by the court, predicated on this feature of the — 728 — case; that is, upon the theory that respondent provoked the difficulty; and, it seems to he a fair declaration of law ordinarily in such cases, but it ignores the well-settled principle that when one brings on a difficulty and his assault is met with more force than is necessary for its proper defense, then the person assaulted may ‘ become the wrongdoer ab initio. Sir William Blackstone, in speaking of a slayer who has himself begun the combat and then retreated, says: “Having begun, endeavors to decline any future struggle and afterwards being closely pressed by his antagonist, kills him to avoid his own destruction, this is homicide excusable by self-defense.” [4 Blackstone Com., 184.] And this doctrine is quoted and approved by our Supreme Court in State v. Partlow, 90 Mo. 608, 4 S. W. 14, where the doctrine is laid down that although one may be in the wrong in the first instance by bringing on the difficulty, yet a space for repentance is always open, and where he withdraws as far as he can from the combat in good faith and his adversary still pursues him, then if taking life becomes necessary to save his own, he will be justified. The doctrine is well stated in 1 Horrigan & Thompson’s Cases on Self-Defense, at page 724, as follows: “The rule is well stated in a case in Tennessee. ‘Cases may occur where the plaintiff brings on the difficulty, and the defendant, in the first instance acted lawfully, but after-wards, by an unnecessary degree of violence, become the trespasses ab initio. In cases of assault and battery, both parties may be guilty of a breach of the peace, and liable to indictment; but a civil action cannot be brought by each against the other. The plaintiff may have been the aggressor. Yet if the defendant had used not only more force, than was necessary for his self-defense, but had unnecessarily abused the plaintiff, he cannot, in a civil action, recover damages, but must pay damages.’ ” [Chambers v. Porter, 5 Coldw. 282; Besenecker v. Sale, 8 Mo. App. 211.] In view of the fact that all of the injuries were — 729 — inflicted on respondent while he was retreating, it appears that this well-settled principle is peculiarly applicable on appellants’ theory of the case and that the instruction requested should have incorporated it in such manner that the question -would have been fairly submitted to the jury, that if respondent made the first assault, then he could not recover unless his injuries were inflicted by appellants while employing more force than was necessary in the proper defense of themselves and their associates, for on the record before us, appellants were entitled to the verdict only upon condition that they did not employ unnecessary force under the circumstances and pass beyond the right of legitimate defense of themselves and companions and into the unwarranted realm of wrongful chastisement. The mere fact that he had assaulted some of the parties and retreated, could afford no right for a number of the party to follow up and assault him in return. This would not be self-defense, nor would it be in defense of another; but, on the contrary, savors more of revenge. Indeed, while he was in the act of assaulting members of the party, they would have the undoubted right to use proper force to prevent such assault, hut the use of force to prevent an assault is quite different from following up for the purpose of chastisement. We are persuaded that inasmuch as the instruction ignored this pertinent principle introduced from appellants’ evidence and upon their theory of the case, that the court did not err in refusing the instruction as asked. 4. The court modified appellants’ second instruction by striking therefrom the words: “the mere fact of defendants having carried bottles of beer in their pockets or hands and attempted to drink beer on said car would not of itself he regarded in law as wrongful or offensive conduct.” The modification by striking out the words quoted, was no error. The court would not be justified in instructing the jury that such conduct was no offensive nor would it have been justified in instructing that, — 730 — of itself, it was offensive. It was purely a question of fact. Such conduct might have been offensive to numerous persons on the car and it might not have been. It was certainly not a question of law with which the court could deal as such. The evidence discloses that a passenger complained of it to the conductor before he remonstrated in the first instance, and if this be true, it was no doubt offensive at least to that passenger. It was a proper fact in evidence to be considered by the jury without comment from the court. It is unnecessary to prolong the opinion by a separate discussion of the several remaining assignments of error. Those with which we have dealt are the more important and upon which the learned counsel have laid particular stress. Upon examination, we are of the opinion that there is no reversible error in the record. The case seems to have been well tried by the court and counsel. Upon the record, the judgment is for the right party. It should be affirmed and it is so ordered. Bland, P. J.} and Goode, J., concur.