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Rusher v. Smith





APPEAL from the Circuit Court of Franklin County; the Hon. ALBERT W. McCALLISTER, Judge, presiding.


This action was initiated in the Circuit Court of Franklin County by James W. Rusher as administrator of the estate of Donald J. Rusher, deceased, against Stephen R. Smith, Earl D. Christian and Grace Ham to recover damages for the wrongful death of Donald J. Rusher. The jury returned a verdict against the three defendants in the sum of $39,000 upon which judgment was entered. Only defendant Stephen R. Smith appeals from the judgment in favor of plaintiff.

In the complaint, plaintiff alleges that decedent's parents, James W. Rusher and Ruth E. Rusher, were deprived of the means of support and other valuable services of their son when he was willfully and maliciously shot and killed by defendants, and are therefore entitled to actual and punitive damages. Plaintiff further alleges that the surviving wife, Dianna Rusher, who participated in the acts leading to the death of her husband, is barred from receiving any damages.

Defendant Smith filed a motion to dismiss asserting that there can be no recovery for punitive damages in a wrongful death action and that the complaint failed to contain an allegation that the decedent was free from negligence or exercising due care at the time of his death. The trial court denied the motion to dismiss but struck the allegation of punitive damages from the complaint.

Thereafter, defendant Smith filed a motion for summary judgment which was denied. In arguing this motion, counsel for Smith claimed that the distribution under the Wrongful Death Act was to be made according to the laws of intestate succession; that, therefore, the surviving spouse was the only person entitled to any recovery in this action; and that if she were unable to recover because of her complicity in the death of her husband, then no one was entitled to receive the benefits under the Act.

At trial, Grace Ham, Earl D. Christian and Earl's wife, Lori Vailes Christian, testified that they saw defendant Smith shoot Donald J. Rusher with a shotgun in the churchyard of the Eakin Grove Freewill Baptist Church. Defendant Smith did not testify in his defense.

John Andrews, an investigator for the Franklin County sheriff's department, took various photographs of the deceased at the scene of the shooting. Plaintiff sought to introduce into evidence two of these photographs over the objection of defendant Smith. The trial court sustained the objection to one of the pictures because of its prejudicial content but admitted the other photograph.

During the testimony of Pam Rusher, the decedent's sister, plaintiff introduced into evidence a photograph of the deceased in the living room of his parents' home on Christmas Eve in 1972, which was approximately four years prior to the death of decedent. Defendant Smith's objections to the photograph were overruled.

Various testimony was heard concerning the pecuniary loss of the parents as a result of the death of their son who died at the age of 21. After completing approximately one year of high school, decedent worked three months for a drive-in restaurant doing menial tasks. Of the $25-a-week salary, only four to five dollars were given to the parents. Decedent then joined the Army in September of 1972, but was discharged in January of 1974 with a less than honorable discharge. After he left the service, decedent went to work for approximately three months training bird dogs in Canada. When he returned, he gave his father $30. Thereafter, decedent worked about a month helping to tear down the old Benton High School.

In 1974, he married Dianna Brown, but only lived with her for 1 1/2 years. After the separation in December of 1975, he returned to the home of his parents. Shortly thereafter, decedent volunteered to go to the Chester Mental Health Institute for drug rehabilitation and stayed there until August of 1976. He then continued to live with his parents until his death in November of 1976.

During the periods that decedent lived at home since 1972, he helped in the remodeling of the house, did various household chores, and worked in the yard. His health appeared to be good except during the time of his marriage.

In 1975 and 1976, decedent had numerous experiences with the law. He pleaded guilty to a burglary one month prior to his death and had been charged on various occasions with drug violations. At the time of his death, he was on probation for the commission of the burglary.

Overall, decedent spent 90% of his income on himself. He only contributed a maximum of $50 to $60 a year to his parents.

At the instruction conference, defendant Smith objected to plaintiff's Instruction No. 10 which contained the ...

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