White v. Bunn

Citation145 S.W.2d 138,346 Mo. 1112
Decision Date03 December 1940
Docket Number36671
PartiesKatherine White and Maryland Casualty Company, a Corporation, Appellants, v. John Bunn
CourtUnited States State Supreme Court of Missouri

Appeal from Vernon Circuit Court; Hon. Thomas W. Martin Judge.

Reversed and remanded.

Grant Emerson, Ewing, Ewing & Ewing and Lynn M. Ewing for appellants.

(1) In an action based upon injuries received from the discharge of firearms the burden is upon defendant to justify his action or to show the injury was inevitably and utterly without fault on his part. Morgan v. Cox, 22 Mo. 373; Conway v. Reed, 66 Mo. 346; Morgan v Mulhall, 214 Mo. 459, 114 S.W. 4; Atchison v. Procise, 24 S.W.2d 187; Hartman v. Hoernle, 201 S.W. 911. (2) Under the evidence in this cause contributory negligence was and is no defense. Authorities under Point (1); Crawford v. Stockyards Co., 215 Mo. 394, 114 S.W. 1057. Therefore, under the above points the court should have given Instructions Y and 1 as offered. And the court should not have modified Instruction 1 and given it as Instruction 1A. Likewise the court should not have given Instruction A on request of defendant. (3) The modification of an instruction offered and the giving of it as modified, is error, if the instruction requested was proper. Instruction 3 was a proper instruction. Therefore, the modification thereof and the giving of Instruction 3A was error. Turner v. Butler, 253 Mo. 202, 161 S.W. 745. (4) An instruction which unduly and unfairly emphasizes certain features of a cause to the prejudice of a party is reversible error. Instruction A is subject to this criticism. Dawes v. Starrett, 336 Mo. 897, 82 S.W.2d 58.

Gibson & Teel for respondent.

Under the modern rule action for negligent shooting are grounded in case for negligence and not in trespass vi et armis. McLaughlin v. Morlatt, 246 S.W. 548; Hawksley v. Peace, 96 A. 856, L. R. A. 1916D, 1179; Annear v. Schwartz, 148 P. 709, L. R. A. 1915E, 267. In an action grounded in negligence plaintiff who alleges negligence must prove it. Conway v. Reed, 66 Mo. 346. Under the modern practice in an action charging negligence in shooting another the question of negligence vel non of the defendant is for the jury. Gibson v. Payne, 154 P. 422; Haines v. Kreeger, 25 Pa. Dist. 62. Where the facts are such that reasonable men may differ whether there was negligence they should be submitted to the jury. Gibson v. Payne, 154 P. 422. Contributory negligence of the plaintiff is a valid defense to an action for negligent injury to plaintiff by shooting with a gun. McLaughlin v. Marlatt, 246 S.W. 548; Green v. Standard Oil Co., 199 S.W. 746; Bahel v. Manning, 70 N.W. 327, 36 L. R. A. 523; Fowler v. Monteleone, 153 So. 490; Davison v. Flowers, 174 N.E. 137; McMillen v. Steele, 119 A. 721; Petry v. Hopping, 118 A. 105; O'Neil v. Wood, 97 A. 753; Gibson v. Payne, 154 P. 422; Harper v. Holcomb, 130 N.W. 1128; Rudd v. Byrnes, 105 P. 957. One who voluntarily goes or remains in a dangerous situation when he knows or by the exercise of ordinary case for his own safety should know of the danger is himself guilty of negligence. Gray v. Union E. L. & P. Co., 282 S.W. 490.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION
BOHLING

This is an action for the alleged negligent shooting and death of Harry White, instituted by his widow Katherine White and Maryland Casualty Company, a corporation, an insurance carrier paying Mrs. White $ 5000 under a workmen's compensation policy. Verdict and judgment for John Bunn, defendant. Plaintiffs appeal.

The issues presented may be disposed of by rulings involving an intentional and negligent injury and the contributory negligence of White as an issue of fact.

Harry White was thirty-two years of age, healthy, with good eyesight and hearing. He was a salesman for the Southwest Liquor Company of Joplin, Missouri, where he resided. Defendant, a customer, had a place of business, sixteen feet, east and west, by thirty-two feet, north and south, on the north side of Highway No. 54 about fourteen miles west of Nevada, Missouri. The south wall had a door about the center and a window near its east end. Extending north along the east wall was merchandise shelving. Approximately four feet west of this shelving was a sixteen foot counter, about three feet wide and three feet high, the south end being flush with the south wall. The four foot passageway was open only at the north. Between the counter and the west wall were a table, some chairs and two oil barrels. North of the counter was a stove and defendant's cot.

Harry White called at Bunn's place January 12, 1937, about 3:00 p.m. or later. They were good friends. Thereafter Clark Cook, accompanied by others, came in. White, Bunn, and Cook were leaning against the counter. Cook had been hunting rabbits with a 22-caliber short barrel pistol and made some remarks about how good a gun it was and how loud it would shoot. There were eight or nine men or boys in Bunn's place, and someone asked Cook to hit a match lying on the floor. Cook did. Cook then put his gun in his car, and returned. Some of the men started playing cards. Twenty or thirty minutes later Louis Fritter came in. In the meantime Bunn had said to White: "Harry, just check up, see anything I need;" and White had gone behind the counter. Fritter and Cook started scuffling and cutting-up in fun, and Cook made a motion as though he had a gun. Bunn then said to Fritter: "Go get my big gun and show him how loud it will shoot." Fritter went behind the counter and brought back a 38-caliber gun and shot at the floor. Bunn said "I don't mean that one, Louis, I mean my gun." Bunn then procured his 45-caliber Colt hammer gun from the rear of the building and, returning to a point approximately eighteen inches north of and three or four feet west of the counter, raised the gun to a position about opposite his right ear. He started to bring it down to shoot at the floor. When the gun was at a point about three feet above the floor it went off. The bullet struck the top of the counter, ricocheted and passed through White's head and out of the window. White fell back of the counter and died the next day without regaining consciousness. The bullet would have missed White by approximately six to eight feet had it not ricocheted. Bunn, not realizing White was hurt said: "Come on out, White, the shooting is over," Bunn testified that he saw White and everyone else in the building while he was raising the gun; that White was behind the counter at the south end, writing down orders; that "I don't know whether my thumb came off of the hammer or if I pulled the trigger." Three to five minutes elapsed between the Fritter and Bunn shots.

Plaintiffs' cause of action was based on negligence, the petition charging that the acts of Bunn "were negligent and reckless and in disregard of the safety" of deceased and others. Contributory negligence was an available defense, if established. McLaughlin v. Marlatt, 296 Mo. 656, 668 [I, III], 246 S.W. 548, 552 [1, 3, 4, 8]. The petition did not charge and the evidence did not establish that defendant acted with the intention of shooting any person or in realization to a substantial certainty that he would shoot any person. Defendant intended to shoot but intended no harm to deceased or any other. His conduct may have been negligent but did not give rise to a cause of action based on an intentional injury. The ratio decidendi of observations in cases relied upon by plaintiffs to restrict defendant's available defenses to justifiable or excusable injury are applicable to an intentional shooting and not to cases wherein the evidence establishes only a negligent shooting.

Morgan v. Cox (Banc, 1856), 22 Mo. 373, "was for the negligent shooting of the plaintiff's slave, and the only question was as to the fact of negligence." (374) The court disposed of the case upon grounds of a negligent shooting (376), and the subsequent observations there made and relied upon by plaintiffs were dicta.

Conway v. Reed (Banc, 1877), 65 Mo. 346, mentions an "unlawful and wrongful shooting" (347), "an intentional trespass" (355), and evidence by plaintiff establishing defendant's "carelessness and negligence." The opinion conforms to the reasoning of the dictum in Morgan v. Cox (351).

Dowell v. Guthrie (Banc, 1889), 99 Mo. 653, 661(2), 12 S.W. 900, 902(2), 17 Am. St. Rep. 598, 602(2), was an action founded on negligence for injury to plaintiff by a sky rocket. The Morgan and Conway cases are cited and discussed and we think it clear therefrom that the dictum of the Morgan case (and the holding of the Conway case) is not to be followed where the injury is unintentional and plaintiff's case rests upon negligence. [See also Dowell v. Guthrie (Banc, 1893), 116 Mo. 646, 654, 22 S.W. 893, 895, and the criticism of the Conway case in McLaughlin v. Marlatt, supra.]

Morgan v. Mulhall (Div. I, 1908), 214 Mo. 451, 454, 456, 114 S.W. 4, 5, where intentional and negligent injuries are mentioned, really involved an intentional harm. The petition charged that "the defendant by shooting into a crowd of people negligently shot the plaintiff," and defendant's counsel submitted the cause in the appellate court on the theory "defendant shot at Frank Reed, a dangerous and desperate character, missed him and the bullet wounded plaintiff in the abdomen." Defendant had an intention to shoot and an intention to harm; and in such circumstances the intention to harm is transferred from the intended to the actual victim. [Carnes v. Thompson (Mo.), 48 S.W.2d 903, 904[3], and authorities there cited.] These observations are, we think, also applicable to Atchison v. Procise (Mo. App.), 24 S.W.2d 187, although, from the opinion, the pleadings sounded in negligence.

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3 cases
  • Robertson v. Manufacturing Lumbermen's Underwriters
    • United States
    • Missouri Supreme Court
    • 3 Diciembre 1940
  • Turpin v. Shoemaker, 52768
    • United States
    • Missouri Supreme Court
    • 13 Mayo 1968
    ...used, especially in automobile cases, that one is entitled to assume that the other party will not be negligent. In White v. Bunn, 346 Mo. 1112, 145 S.W.2d 138, plaintiff was in a place which We hold, as already indicated, that contributory negligence of the deceased was a submissible issue......
  • Lee v. Hartwig, WD
    • United States
    • Missouri Court of Appeals
    • 22 Diciembre 1992
    ...care standard. However, when dealing with firearms, the care required by defendant is a very high degree of care. White v. Bunn, 346 Mo. 1112, 145 S.W.2d 138, 140 (1940); McLaughlin v. Marlatt, 296 Mo. 656, 246 S.W. 548, 553 (1922); Atchison v. Procise, 24 S.W.2d 187, 190 (Mo.App.1930). The......

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