Rombaueb. P. J.,
delivered the opinion of the court.
The plaintiff is a minor, and she prosecutes this, suit by Oliver Beck as next friend. The defendant has died since the trial, and his executor has been substituted as a party. The case, therefore, is in this condition: The executor properly prosecutes this appeal, because, under our code of practice, appeals perform merely the functions of writs of error, and the validity of the judgment, and not of the original claim, is the subject of inquiry. Lewis v. Railroad, 59 Mo. 495. But, if the judgment is reversed, the plaintiff is remitted to her [74]*74original claim, and, as that, claim is one for injuries to her person, it is lost forever. R. S. 1879, secs. 96, 97; Stanley v. Bircher, 78 Mo. 247.
Under such circumstances, it is incumbent upon us to scrutinize the record very carefully to determine whether any error, which may have intervened in the trial of the cause, was clearly prejudicial to the appellant. If we are satisfied that such intervening error has materially affected either the right or extent of the recovery, the mere fact, that a reversal of the judgment debars the plaintiff from all redress, should not prevent us from reversing it. On the other hand, if we are not thus satisfied, we should not, for the sake of vindicating technical precision, sacrifice substantial justice.
The plaintiff averred in her petition that the defendant Zachariah Harris without just cause or provocation, but wickedly and maliciously, wounded and injured her with a leaden bullet, shot or discharged from a pistol, and that the wound thus inflicted caused a permanent injury, and also caused her great physical and mental suffering.
The defendant’s answer contained: First. Ageneral denial. Second. A plea of justification. Third. Facts and circumstances in mitigation of damages.
The cause was tried by a jury, and a verdict for seven hundred and fifty dollars against the defendant was returned into court, and judgment was entered accordingly.
All instructions given and refused by the court have been lose, and, in passing on the case, we are necessarily confined to the examination of errors arising out of the admission or rejection of evidence, and the action of the court in respect of the sufficiency of the pleadings.
I. The first error assigned by the defendant, and to which our attention has been directed by counsel, is the order of the court sustaining a motion to strike out [75]*75a portion of the defendant’s answer. The portion of the answer objected to, and which was stricken ont by the court, contained a detailed statement of the circumstances under which the assault was made, and, if true, had a tendency to prove that the act^complained of was justifiable, or, at least, was not wanton or malicious in its character.
The action of the court in striking out this portion of the answer cannot be held to be error. In actions for personal injuries, evidence in mitigation of damages may be given under a general denial. Boone on Code Pleading, sec. 76: Hays v. Berryman, 6 Bosw. 679; Smith v. Lisher, 23 Ind. 500. This was the rule at common law (2 Greenleaf on Evidence [14 Ed.] sec. 93), and it has not been changed by our code of civil procedure. It is only in actions for slander or libel that mitigating circumstances may be set forth in the answer. R. S. 1879, sec. 3553.
But, aside from this, it appears that the defendant was not prejudiced by this action of the court, since he was permitted on the trial to show the mitigating circumstances relied on by him. We will have to rule this assignment against the defendant.
II. The only other errors assigned relate to the action of the court in admitting and rejecting testimony, and to its action in refusing to set aside the verdict, which the defendant claims is excessive and the result of prejudice.
As above stated,' there are no instructions preserved in the record, and we must, therefore, assume that the court correctly instructed the jury on all issues properly raised by the evidence. It is elementary that, where the record is silent, all admissible presumptions must be made in support of the action of the trial court. We must further keep in view that, in.determining the correctness of the rulings of the trial court on the evidence, we must take the state of the evidence when the [76]*76rulings were made, and, for the purpose of determining whether the verdict is supported by the evidence, we must consider the plaintiff’s evidence alone, as the question of the weight of evidence, and credibility of witnesses, are questions for the jury, and not for us.
The plaintiff’s evidence tended to show the following facts : The decedent was a farmer, and the plaintiff’s father was his tenant occupying a portion of the farm. Upon the farm there was a pond fenced in a lot, known as the pond lot, at which pond the plaintiff’s father had been in the habit of watering his stock up to the time of the difficulty hereinafter mentioned. On the day preceding the difficulty, the decedent forbade the plaintiff ’ s father to water his stock at the pond, and his son drove back some stock which was attempted to be watered. On the day of the difficulty, the plaintiff’s father, with the assistance of members of his family, including plaintiff, and with the aid of two other men; tried to take a cow by for ce to the pond to have her watered, and the decedent and his son resisted the attempt by force. In the scuffle which ensued, the decedent’s son, with a club or part of a wagon shaft, felled the plaintiff’s father and brother to the ground, and then ran, being pursued by the plaintiff ’ s father and brother. The decedent, who was on the ground with a pistol strapped around his waist, then fired one shot at the plaintiff’s father and brother, and then turned around and fired two additional shots at the plaintiff and her mother, who were standing behind him and about fifteen feet distant, the second of such shots taking effect in plaintiff’s thigh and causing the injury sued for. As far as the plaintiff’s evidence tended to show, and, in fact, as far as all the evidence went, no personal violence was offered to the decedent prior to his beginning to fire, nor wa,s any violence done him, until after he had shot the plaintiff\ nor was there any evidence, when the testimony hereinafter [77]*77mentioned was admitted, as to whether plaintiff’s father had a legal right to water his stock in the pond, the only evidence on that subject, up to that time, being that the plaintiff’s father had prior to, and up to the preceding day, watered his stock there, and that the decedent forbade his doing so.
This being the state of the case, the court, against the defendant’s objection, admitted evidence touching the financial condition of the plaintiff and her family, and the defendant properly saved his exception. The court, against a similar objection, admitted evidence touching the defendant’s financial condition, to which action of the court the defendant saved no exception.
That in all cases, wherein the recovery of exemplary damages is justified, the defendant’s financial condition may be given in evidence is not controverted. Exemplary damages are not given by way of compensation, but for the purpose of inflicting punishment on the defendant, and the defendant’s ability to pay becomes a material inquiry.
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Rombaueb. P. J.,
delivered the opinion of the court.
The plaintiff is a minor, and she prosecutes this, suit by Oliver Beck as next friend. The defendant has died since the trial, and his executor has been substituted as a party. The case, therefore, is in this condition: The executor properly prosecutes this appeal, because, under our code of practice, appeals perform merely the functions of writs of error, and the validity of the judgment, and not of the original claim, is the subject of inquiry. Lewis v. Railroad, 59 Mo. 495. But, if the judgment is reversed, the plaintiff is remitted to her [74]*74original claim, and, as that, claim is one for injuries to her person, it is lost forever. R. S. 1879, secs. 96, 97; Stanley v. Bircher, 78 Mo. 247.
Under such circumstances, it is incumbent upon us to scrutinize the record very carefully to determine whether any error, which may have intervened in the trial of the cause, was clearly prejudicial to the appellant. If we are satisfied that such intervening error has materially affected either the right or extent of the recovery, the mere fact, that a reversal of the judgment debars the plaintiff from all redress, should not prevent us from reversing it. On the other hand, if we are not thus satisfied, we should not, for the sake of vindicating technical precision, sacrifice substantial justice.
The plaintiff averred in her petition that the defendant Zachariah Harris without just cause or provocation, but wickedly and maliciously, wounded and injured her with a leaden bullet, shot or discharged from a pistol, and that the wound thus inflicted caused a permanent injury, and also caused her great physical and mental suffering.
The defendant’s answer contained: First. Ageneral denial. Second. A plea of justification. Third. Facts and circumstances in mitigation of damages.
The cause was tried by a jury, and a verdict for seven hundred and fifty dollars against the defendant was returned into court, and judgment was entered accordingly.
All instructions given and refused by the court have been lose, and, in passing on the case, we are necessarily confined to the examination of errors arising out of the admission or rejection of evidence, and the action of the court in respect of the sufficiency of the pleadings.
I. The first error assigned by the defendant, and to which our attention has been directed by counsel, is the order of the court sustaining a motion to strike out [75]*75a portion of the defendant’s answer. The portion of the answer objected to, and which was stricken ont by the court, contained a detailed statement of the circumstances under which the assault was made, and, if true, had a tendency to prove that the act^complained of was justifiable, or, at least, was not wanton or malicious in its character.
The action of the court in striking out this portion of the answer cannot be held to be error. In actions for personal injuries, evidence in mitigation of damages may be given under a general denial. Boone on Code Pleading, sec. 76: Hays v. Berryman, 6 Bosw. 679; Smith v. Lisher, 23 Ind. 500. This was the rule at common law (2 Greenleaf on Evidence [14 Ed.] sec. 93), and it has not been changed by our code of civil procedure. It is only in actions for slander or libel that mitigating circumstances may be set forth in the answer. R. S. 1879, sec. 3553.
But, aside from this, it appears that the defendant was not prejudiced by this action of the court, since he was permitted on the trial to show the mitigating circumstances relied on by him. We will have to rule this assignment against the defendant.
II. The only other errors assigned relate to the action of the court in admitting and rejecting testimony, and to its action in refusing to set aside the verdict, which the defendant claims is excessive and the result of prejudice.
As above stated,' there are no instructions preserved in the record, and we must, therefore, assume that the court correctly instructed the jury on all issues properly raised by the evidence. It is elementary that, where the record is silent, all admissible presumptions must be made in support of the action of the trial court. We must further keep in view that, in.determining the correctness of the rulings of the trial court on the evidence, we must take the state of the evidence when the [76]*76rulings were made, and, for the purpose of determining whether the verdict is supported by the evidence, we must consider the plaintiff’s evidence alone, as the question of the weight of evidence, and credibility of witnesses, are questions for the jury, and not for us.
The plaintiff’s evidence tended to show the following facts : The decedent was a farmer, and the plaintiff’s father was his tenant occupying a portion of the farm. Upon the farm there was a pond fenced in a lot, known as the pond lot, at which pond the plaintiff’s father had been in the habit of watering his stock up to the time of the difficulty hereinafter mentioned. On the day preceding the difficulty, the decedent forbade the plaintiff ’ s father to water his stock at the pond, and his son drove back some stock which was attempted to be watered. On the day of the difficulty, the plaintiff’s father, with the assistance of members of his family, including plaintiff, and with the aid of two other men; tried to take a cow by for ce to the pond to have her watered, and the decedent and his son resisted the attempt by force. In the scuffle which ensued, the decedent’s son, with a club or part of a wagon shaft, felled the plaintiff’s father and brother to the ground, and then ran, being pursued by the plaintiff ’ s father and brother. The decedent, who was on the ground with a pistol strapped around his waist, then fired one shot at the plaintiff’s father and brother, and then turned around and fired two additional shots at the plaintiff and her mother, who were standing behind him and about fifteen feet distant, the second of such shots taking effect in plaintiff’s thigh and causing the injury sued for. As far as the plaintiff’s evidence tended to show, and, in fact, as far as all the evidence went, no personal violence was offered to the decedent prior to his beginning to fire, nor wa,s any violence done him, until after he had shot the plaintiff\ nor was there any evidence, when the testimony hereinafter [77]*77mentioned was admitted, as to whether plaintiff’s father had a legal right to water his stock in the pond, the only evidence on that subject, up to that time, being that the plaintiff’s father had prior to, and up to the preceding day, watered his stock there, and that the decedent forbade his doing so.
This being the state of the case, the court, against the defendant’s objection, admitted evidence touching the financial condition of the plaintiff and her family, and the defendant properly saved his exception. The court, against a similar objection, admitted evidence touching the defendant’s financial condition, to which action of the court the defendant saved no exception.
That in all cases, wherein the recovery of exemplary damages is justified, the defendant’s financial condition may be given in evidence is not controverted. Exemplary damages are not given by way of compensation, but for the purpose of inflicting punishment on the defendant, and the defendant’s ability to pay becomes a material inquiry. Strange to say this doctrine finds no application whatever in criminal procedure, but is confined strictly to civil procedure possessing criminal elements. With the logic of the rule we have nothing to do; it suffices for us that the rule exists, and is unquestioned in this state. The defendant, however, claims that the plaintiff’s financial condition, and that of members of her family, was wholly irrelevant to any issue,- regardless of the question, whether or not the case was one for exemplary damages, and that the admission of such evidence was highly prejudicial to the defendant in enlisting the prejudices and sympathies of the jury in the behalf of the plaintiff. We concede that the admission of evidence touching plaintiff’s financial condition in an action for injuries to the person is logically still less defensible than evidence of the defendant’s financial condition; yet it has been expressly decided in Dailey v. Houston, 58 Mo. 368, that in such [78]*78an action “the condition in life of the plaintiffs and their pursuits and the nature of their business ” might be considered by the jury in estimating the damages. That case has never been expressly overruled in this state, and, as it is a controlling decision of the supreme court on this subject, it is binding on us and the trial court alike. We have not overlooked the fact that in Stephens v. Railroad, 96 Mo. 214, the supreme court held that evidence as to the number of plaintiff’s children is inadmissible in an action for injuries to his person, when there is nothing in the case to justify the giving of exemplary damages, and that proof of the plaintiff’s financial condition was equally inadmissible in such cases; but the remark is carefully confined to cases where the action is one for compensatory damages only, and the case of Dailey v. Houston is not even alluded to.
Under these circumstances, we cannot put the trial court in the wrong for admitting this evidence because, when it was admitted, the facts of the case unquestionably justified the submission of the case to the jury, as one warranting exemplary damages. Beyond this, however, the following facts' are entitled to consideration. It appeared aliunde from a mass of testimony, wholly unobjected to, that the plaintiff was a minor sixteen years old living with her parents, who had a large family of children, all engaged in work as tenants of the defendant in cultivating a small portion of his farm. The plaintiff presumptively had no financial condition, and the financial, condition of her parents presumptively was of the humblest kind. That the court admitted evidence in aid of this presumption can at best be merely considered cumulative evidence, the admission of which, even if erroneous, would not justify the reversal of the judgment as for prejudicial error.
Almost every other objection of the defendant to the admission of evidence relates to the admission of evidence on cross-examination of defendant’s witnesses, [79]*79and while much of the evidence thus admitted was irrelevant, its admission, considering the latitude which is permitted in the cross-examination of witnesses, could not even be considered error, much less prejudicial error.
The verdic t, as above seen, was for seven hundred and fifty dollars. The testimony of the plaintiff tended to show that the wound was inflicted by a ball passing from a rifled revolv er in a rotary motion through her thigh close to the femoral artery; that the wound, although only a flesh wound, was painful; that the plaintiff was in a critical condition for several days, and was confined to her bed for we eks, and that, even at the date of the trial, which was seven months after the wound was inflicted, she could not use her leg for any length of time without pain, and that the wound was still open and had not healed. The probability of a permanent or'at least continuous injury was made by the evidence a proper element for the consideration of the jury. There is, therefore, nothing in the amount of the recovery, which would justify us in vacating the verdict on account of excess, even if the plaintiff were limited to strictly compensatory damages, as there is nothing to show that the amount awarded was excessive, as a mere compensation. On the other hand we cannot accede to the view which has been" strongly pressed upon our consideration, that, in determining whether the case is one for exemplary damages, we ought to take into consideration what the defendant’s testimony tended to show. The credibility of witnesses is a question for the jury and not for us, and before we can disregard the finding of the jury as one opposed to the weight of evidence, we must be at least clearly satisfied that it was the result of prejudice. If the defendant’s possession was invaded, he was justified in using necessary force in repelling it, but we cannot see how that could possibly justify him in deliberately using a deadly [80]*80weapon on the mother and daughter, who, as all the testimony shows, were unarmed.
These views lead to an affirmance of the judgment, and, with the concurrence of Judge Thompson, it is affirmed. Judge Biggs, who dissents, is of opinion that this decision is opposed to the decisions of the supreme court in Overholt v. Vieths, 93 Mo. 422, and Stephens v. Railroad, 96 Mo. 207. It is, therefoi’e, ordered that the case be certified to the supreme court for final determination under section 6 of the amendment of the constitution relating to the judicial department.