Smith v. Haas ( 1928 )

STATEMENT OP THE CASE

REYNOLDS, J.

This is a suit by Mrs. Theodosia Self Smith, widow of Robert Hill Smith, in her own behalf and also on behalf of her minor child, Robert Hill Smith, <5f whom she is the duly confirmed and qualified natural tutrix, against W. D. Haas, to recover damages alleged to have been sustained by them in the death of 'Robert Hill Smith, who was slain by the defend'ant, W. D. Haas.

She alleges that the said W. D. Haas did wilfully, feloniously and with malice aforethought kill and murder the deceased.

The defendant filed an exception of no cause of action, which, however, appears not to have been passed on.

Defendant also filed an answer setting up:

“ * * * that on December 20, 1926, respondent, as president of the Union Oil Company, Inc., superinduced thereto solely by business reasons and in the interest of said company, and for causes deemed sufficient by respondent, requested the said Smith to resign as manager of said company, and, upon the refusal of the said Smith to do so, respondent proceeded to issue a call for a meeting of the hoard of directors of said company to act upon said subject matter; that, thereupon, the said Smith, unjustly infuriated by respondent’s request and action, and in desperate mood born of his financial difficulties and embarrassment, proceeded to vituperate your respondent, and to declare his intentiion of killing your respondent, paying no heed to respondent’s remonstrances, and refusing to listen to reascn; that, finally, the said Smith, with a reiteration of his threat against respondent’s life, undertook to carry his threat into execution by reaching for a loaded revolver lying in an open drawer immediately in front of and within the easy grasp of the said Smith, with the manifest purpose of - then and there taking the life of your respondent; that, thereupon, your respondent beholding his life in imminent danger, and acting solely in self defense, quickly drew a pistol and fired rapidly twice at the said Smith, inflicting a mortal wound upon the said Smith when and while the said Smith was continuing in the act of undertaking to slay your respondent.

“That, as aforesaid, respondent acted solely in defense of his life and person in taking the life of the said Smith; that, at the time respondent fired the fatal shot, said Smith had formed and expressed the design of taking your respondent’s life, was committing an assault upon respondent, and was undertaking then and there to execute said design with the means at hand and opportunity so to do; that the said Smith, and not respondent, was the aggressor; that respondent could not have safely retreated when and while the said Smith was making said assault upon him; that when -respondent fired, as aforesaid, he was acting under the real and honest belief, and had reasonable grounds to believe, that he was in imminent danger of his life being taken, or of great bodily harm being inflicted upon him by the said Smith; and that said homicide was both justifiable.”

A jury was prayed for by defendant and ordered by the Court and on these issues the case was tried before the Court and jury. The jury returned a verdict: “We, the jury, find fo'r the defendant, Dr. Haas, rejecting the demands of the plaintiff; 10 in favor of defendant, 2 in favor of plaintiff.”

Upon this verdict a judgment was rendered and signed by the Court rejecting plaintiff’s demands and dismissing her suit at her cost, and she has appealed.

Defendant has filed in this court an exception of no cause of action.

OPINION

EXCEPTION NO CAUSE OP ACTION

The exception is founded upon the theory that the petition only presents conclusions of law and does not contain averments of facts.

We canot concur in this contention.

Allegation III reads as follows:

“That, on December 20, 1926, at and in the said Parish of Avoyelles, Louisiana, the said W. D. Haas did wilfully, feloniously and with malice aforethought, kill and murder petitioner’s said husband.”

This language is equivalent, we think, to charging that defendant intentionally slew the deceased and without legal justification or excuse; and such averments, if proved, would have entitled plaintiff to judgment.