Alexander v. Crochett

• Decision Date: 30 January 1939
• Docket Number: No. 19322.,19322.
• Citation: 124 S.W.2d 534
• Parties: LARWOOD WESLIE ALEXANDER, RESPONDENT, v. OLIN CROCHETT ET AL., APPELLANTS.
• Court: Missouri Court of Appeals

124 S.W.2d 534

LARWOOD WESLIE ALEXANDER, RESPONDENT, v. OLIN CROCHETT ET AL., APPELLANTS.

No. 19322.

Kansas City Court of Appeals. Missouri.

January 30, 1939.

Appeal from Jackson Circuit Court. — Hon. John M. Cleary, Judge.

REVERSED.

Borders, Borders & Warrick for appellant, K.C. Stock Yards Co.

(1) The evidence was insufficient to make a case for submission to the jury as the essential facts upon which to base liability for injury by an animal were not proved. (a) The Kansas City Stock Yards Company was not the owner and was not in custody or control of this bull and for this reason could not be held liable for injuries inflicted by it. 3 C.J. 105; Bell v. Leslie, 24 Mo. App. 661; Schmidt v. Harkness, 3 Mo. App. 585; Reuter v. Swarthart, 196 N.W. 847, 182 Wis. 453; Durham v. Goodwin, 54 Ill. 469; Farrell v. Crawford, 222 Ill. App. 499; 3 C.J. 1267; Janssen v. Voss, 207 N.W. 279, 189 Wis. 222; Molloy v. Starin, 191 N.Y. 21, 83 N.E. 588; Sec. 205 of 7 U.S.C.A. (b) The evidence wholly fails to show that this bull was vicious or dangerous or more vicious and dangerous than bulls generally. (c) The Kansas City Stock Yards Company cannot be held liable because it did not have knowledge of any viciousness or meanness of this bull or of such facts as to actually charge scienter. Clark v. Missouri, Kansas & Texas Railway Company, 179 Mo. 66; Beckett v. Beckett, 48 Mo. 396; Clinkenbeard v. Reinert, 284 Mo. 569, 225 S.W. 667; Patterson v. Rosenwald, 6 S.W. (2d) 664, l.c. 666; Staetter v. McArthur, 33 Mo. App. 218; Schroeder v. Faires, 49 Mo. App. 470; Short v. Bohle, 64 Mo. App. 242; Freed v. Viraldo, 141 Ark. 32, 216 S.W. 8; Duffer v. Cully, 3 Ore. 377; McIntire v. Prater, 189 Ark. 596, 74 S.W. (2d) 639; Creeger v. Springfield Rendering Co., 220 N.E. 352; Banks v. Maxwell, 171 S.W. 70, 205 N.C. 233. (2) The Kansas City Stock Yards Company was not required to discover by inquiry or otherwise that the bull was vicious nor was it required to exercise care for this purpose and plaintiff's Instruction 1 which told the jury the contrary was erroneous and should not have been given. O'Neill v. Blase, 94 Mo. App. 648; Slaughter v. Sweet & Piper Horse & Mule Co., 259 S.W. 131; 3 C.J. 90; 1 Thompson's Commentaries on the Law of Negligence, par. 842; Clark v. Missouri, Kansas & Texas Railway Co., 179 Mo. 66, 77 S.W. 882; Parrot v. Wells Fargo & Co., 15 Wall. 524; Clinkenbeard v. Reinert, 284 Mo. 569, 225 S.W. 667; Patterson v. Rosenwald, 6 S.W. (2d) 664, 222 Mo. App. 973; Grimes v. Eddy, 126 Mo. 168; Gallagher v. Kroger Grocery & Baking Co., 272 S.W. 1005; Hoyt v. Kansas City Stock Yards Company of Missouri, 188 S.W. 106, l.c. 109. (3) The excitable, changeable and dangerous nature of bulls is a matter of common knowledge, of which plaintiff was bound to take notice without warning, hence the stock yards company cannot be held liable for failure to warn. Borden v. Falk, 97 Mo. App. 566, l.c. 569; Roy v. North Kansas City Development Co., 225 S. W. 965, l.c. 966; 2 American Law Institute's Restatement of the Law of Torts, par. 290; Linnehan v. Sampson, 126 Mass. 506; Barnum v. Terpenning, 75 Mass. 557, 42 N.W. 967; Baird v. Vaughn, 15 S.W. 734; Hudson v. Roberts, 6 Exch. 697; 4 Thompson, Negligence, pars. 4060, 4061, 4041, 4117; Clark v. Missouri, Kansas & Texas Railway Co., 179 Mo. 66, 77 S.W. 882; Manufacturers Fuel Co. v. James White, 116 Ill. App. 107; Quimby v. Shattuck, 187 Atl. 479. (4) Plaintiff's Instruction 1 is erroneous and should have been refused because it permitted a recovery even though this bull was no more mean or vicious than bulls generally and because it permitted a recovery without a finding that the stock yards company owned or had custody, control or possession of this bull. Quimby v. Shattuck, 187 Atl. 479; Wolcott & Lincoln, Inc., v. W.S. Humphrey, 119 S.W. (2d) 1011, l.c. 1025; Jaquith v. Fayette R. Plumb, Inc., 254 S.W. 89; Jenkins v. Trimble, 291 Mo. 227, 236 S.W. 651; Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89; John O'Brien Boiler Works Co. v. Sievert, 256 S.W. 555. (5) The court erred in refusing to give instruction No. 19, requested by defendant, because said instruction properly told the jury that the law imposed no obligation on the stock yards company to make inquiries to discover that the bull was mean or vicious. (6) Plaintiff was guilty of such negligence as to bar any recovery by him, as a matter of law. Morris v. Light & Power Co., 258 S.W. 431, 302 Mo. 475; State ex rel. Kansas City Southern Railway Co. v. Shain, 105 S.W. (2d) 915, 340 Mo. 1195; Cash v. Sonken-Galamba Co., 17 S.W. (2d) 927, 332 Mo. 349; Shuck v. Security Realty Co., 201 S.W. 559. (7) The instructions given by the trial court were so conflicting that giving them constituted reversible error. State ex rel. Sloan v. Polar Wave Ice & Fuel Co., 323 Mo. 363; Mahaney v. K.C., Clay County & St. Joe A.T. Co., 46 S.W. (2d) 817; Mansur-Tebbetts Imp. Co. v. Ritchie, 143 Mo. 587, 45 S.W. 641; John O'Brien Boiler Works Co. v. Sievert, 256 S.W. (2d) 555; 64 C.J. 671. (8) Defendant's failure to mark the ticket that the bull was vicious was not the proximate cause of plaintiff's injury. 45 C.J. 874. (9) Since the plaintiff's action against the Kansas City Stock Yards Company is based upon the principle of respondeat superior and the jury did not find defendant Watkins liable there can be no judgment against the stock yards company. Stoutimore v. Atchison, T. & S.F. Railway Co., 92 S.W. (2d) 659. (10) The verdict is void and cannot be the basis of a judgment because it does not dispose of all the parties. Fenwick v. Logan, 1 Mo. 228; Ferguson v. Thacher, 79 Mo. 511; Miller v. Bryden, 34 Mo. App. 602 (1889); Nichols v. Lead & Zinc Co., 85 Mo. App. 584; Winkelman v. Maddox, 119 Mo. App. 658; Spangler-Bowers v. Benton, 83 S.W. (2d) 170; Newdiger v. Kansas City, 106 S.W. (2d) 51, reversed 114 S.W. (2d) 1047.

O'Hern & O'Hern, John F. Cook and Leon Greenebaum for respondent.

(1) In passing upon demurrer to evidence, plaintiff is entitled to the benefit of all reasonable inferences arising from not only his own evidence but also defendant's evidence. State ex rel. v. McKay, 49 S.W. (2d) 125; Willhauch v. C., R.I. & P. Ry. Co., 61 S.W. (2d) 336; Keneuven v. Berliner's Estate, 54 S.W. (2d) 494. The case may be proved by circumstantial evidence and jury may draw from such evidence as many inferences as circumstances warrant. Freeman v. K.C. Public Service Co., 30 S.W. (2d), l.c. 181; State ex rel. City of St. Charles v. Haid et al., 28 S.W. (2d) 103. Appellant had constructive possession and some constructive control over the bull at the time of plaintiff's injury and, therefore, was required to exercise ordinary care for plaintiff's safety with respect to said bull. Crawford v. Kansas City Stock Yards Co., 73 S.W. (2d) 308. Plaintiff was an invitee in appellant's stockyards and appellant's duty was to exercise ordinary care to ascertain the fact of whether or not the bull was dangerous. The owner of and those in possession of premises always owe invitees the duty to exercise ordinary care. Illgenfritz v. Mo. Power & Light Co., 101 S.W. (2d) 723; Gilliland v. Bondurant, 59 S.W. (2d) 679; Gallagher v. Kroger Gro. & Baking Co., 272 S.W. 1005; 3 C.J., p. 96, par. 327; McCready v. Stepp, 78 S.W. 671, l.c. 673; Orcutt v. Century Bldg. Company, 99 S.W. 1062. (2) There is no merit in appellant's claim that it is a matter of common knowledge that bulls, by nature, are excitable, changeable and dangerous. (3) Appellant cannot complain of plaintiff's Instruction 1 because it used same or similar language in its own instructions. King v. Kansas City Public Service Co., 91 S.W. (2d), l.c. 91. All phases of the possible characteristics of the bull were clearly submitted to the jury under the court's instructions and the jury could not have been misled when the instructions were read as a whole, as they must be. Kaecheler v. Varringer, 19 S.W. (2d), l.c. 1039; Barraclough v. Union Pacific Ry. Co., 52 S.W. (2d), l.c. 1003; Acker v. Coopman, 50 S.W. (2d) 100; Hicks v. Vieths, 46 S.W. (2d) 604; Sharp v. City of Carthage, 5 S.W. (2d) 6. Any ambiguity or lack of clearness in plaintiff's Instruction 1 was made clear to the jury by defendant's instructions and there could not have been reversible error. Larey v. M., K. & T. Ry. Co., 64 S.W. (2d) 682; Jenkins v. Mo. State Life Ins. Co., 69 S.W. (2d), l.c. 669; Null v. Stewart, 78 S.W. (2d) 75, l.c. 79; Morris v. Equitable Assurance Society, 102 S.W. (2d) 569, l.c. 574. Appellant's duty was to exercise ordinary care to discover if bull was dangerous. Gallagher v. Kroger Gro. & Baking Co., 272 S.W. 1005; McCready v. Stepp, 78 S.W. (2d) 671; Orcutt v. Century Bldg. Co., 99 S.W. 1062. (4) The court did not err in refusing to give defendant the requested instruction No. 19. It is not error to refuse withdrawal of instructions. Lach v. Buckner, 86 S.W. (2d) 954, l.c. 962; Gettys v. American Foundry Co., 16 S.W. (2d) l.c. 88; Clift v. R.R., 9 S.W. (2d) 372. The instruction should not have been given because it was confusing and misleading and the jury has a right to consider such evidence on appellant's general duty. Shulz v. Smercina, 1 S.W. (2d), l.c. 119. The instruction was argumentative, commented upon, singled out and given undue influence to a lone feature of the case. Kansas City v. Baruff, 243 S.W., l.c. 172; Freeman v. Berberich, 60 S.W. (2d) 393; Cannon v. S.S. Kresge Co., 116 S.W. (2d) 559; Dahring v. Kansas City, 81 S.W. (2d) 943. The jury had a right to consider such facts sought to be withdrawn in determining appellant's general duty. Gallagher v. Kroger Gro. & Baking Co., 272 S.W. 1005; McCready v. Stepp, 78 S.W. (2d) 671; Orcutt v. Century Bldg. Co., 99 S.W. 1062. Refusal of instruction not error because instruction merely cautionary. Larey v. M., K. & T. Ry. Co., 64 S.W. (2d) 681; Oliver v. Morgan, 73 S.W. (2d) 993. (5) The evidence does not show that plaintiff was guilty of...