Arp v. Rogers

• Decision Date: 12 November 1936
• Docket Number: No. 33885.,33885.
• Citation: 99 S.W.2d 103
• Parties: ARP v. ROGERS et al.
• Court: Missouri Supreme Court

99 S.W.2d 103

ARP v. ROGERS et al.

No. 33885.

Supreme Court of Missouri, Division No. 1.

November 12, 1936.

Appeal from Circuit Court, Ralls County; Edmund L. Alford, Judge.

Action by Otto Arp against O. S. Rogers, and another, a copartnership doing business as Rogers and Wegehoft. From an adverse judgment, the plaintiff appeals.

Affirmed.

Roy Hamlin, of Hannibal, B. B. Megown, of New London, and Ben Ely, of Hannibal, for appellant.

Cave & Hulen, and Edwin C. Orr, all of Columbia, for respondents.

BRADLEY, Commissioner.

Action to recover $10,000 for personal injury. At the close of plaintiff's case plaintiff took what he terms an involuntary nonsuit with leave to move to set aside. Motion to set aside was duly filed and overruled, and plaintiff appealed.

Two questions are presented: (1) Was the nonsuit involuntary? and (2) If so, did plaintiff make a submissible case? We consider the questions in the order stated. At the close of plaintiff's case defendants requested the following peremptory direction: "Now at the close of the evidence on the part of the plaintiff, the court instructs the jury that under the law and the evidence your verdict must be for the defendants." Upon this request, the record recites: "And now, the court indicating that it would give such instruction to the jury, marked said instruction `given', but before said instruction was given or read to the jury, the plaintiff by his counsel announced in open court that plaintiff would take an involuntary nonsuit with leave to move to set aside said involuntary nonsuit, and which leave was granted by the court." It is not at all clear that there was any exception to the giving of the peremptory direction, assuming, for the purpose, that such direction was given, so as to justify an involuntary nonsuit, but defendants make no mention of the exception, hence we proceed on the theory that exception was taken.

Defendants contend that, under the proceedings had as to the nonsuit, the same was voluntary and not involuntary. If defendants are correct, then there is nothing here for review because no appeal could lie from a voluntary nonsuit. As supporting the contention that the nonsuit was voluntary, defendants cite Owens v. Washington Fidelity Nat. Ins. Co. (Mo. App.) 85 S.W.(2d) 193, and Hogan-Sunkel Heating Co. v. Bradley et al., 320 Mo. 185, 7 S.W.(2d) 255. Considering the nonsuit question on the theory that exception was taken to the peremptory direction, we have this situation: (1) Defendants requested at the close of plaintiffs' case, a peremptory direction to find for defendants; (2) the court indicated that such instruction would be given and marked it given; (3) upon the court indicating that the instruction would be given and marking it given, plaintiff excepted and took the nonsuit in question denominating it as involuntary; and (4) the instruction was not read to the jury. Defendant contends that the nonsuit, being taken before the peremptory direction was read to the jury, was voluntary, and that no appeal lies. In Boonville National Bank et al. v. Thompson, Executrix, 99 S.W. (2d) 93, opinion filed 30th day of June, 1936, and not yet reported [in State Report], Division 2 of this court ruled an identical question as here on the nonsuit. The ruling in that case was that it was not necessary to read to the jury the peremptory direction, other requirements being present, and that in such situation as here, the nonsuit was involuntary, and the Owens Case, supra, and other similar cases were disapproved in so far as in conflict with the opinion in the Boonville National Bank Case. The ruling in that case meets with our approval, hence it is not necessary to say more on the nonsuit question. We simply rule that the nonsuit in the present case was involuntary.

Did plaintiff make a submissible case? He alleges that on February 12, 1933, he was a guest in defendants' truck en route from Marion county, Mo., to East St. Louis, Ill., and that while so riding as such guest "defendants did carelessly and negligently so operate their truck aforesaid that when they reached a place in East St. Louis, namely, at or near Tenth and State streets, on or about 3:30 in the morning of February 13, 1933, which place was known to the defendants as being a dangerous place, the defendants did stop their automobile truck, although the defendants well knew that said place was unsafe and dangerous for their guest in said automobile truck, and did park same and while so parked, the defendant Wegehoft, who was then and there in full charge, control and operation of said truck, was ordered and directed to move said truck and was told by a third party unknown to this plaintiff, who was then and there in possession of a forty-five caliber pistol, to move said truck and that because of the negligence and carelessness and failure to heed the warning of said third party, the defendants failed and refused to move said truck from the point of danger mentioned aforesaid, and as a proximate consequence and result of said carelessness and negligence of the defendants, said third party above mentioned and referred to, who is unknown to this plaintiff, did then and there fire and discharge said pistol and revolver at said truck, striking and hitting the right window of the truck and entering the right arm and shoulder of this plaintiff."

Plaintiff, after pleading as shown above, sets out in his petition the nature and extent of his injury and asks judgment. The answer is a general denial.

The facts, as given by plaintiff, are as follows: Plaintiff, who was the only witness as to the facts, was a farmer, residing in Marion county, Mo., near the city of Hannibal. Defendants owned and operated a truck and hauled livestock from Marion county to the National Stock Yards, East St. Louis, Ill. On the night of February 12, 1933, defendant Wegehoft, driving the truck, took to the stockyards, from Marion county, some hogs, sheep, and a bull for plaintiff. Some days before the trip, plaintiff asked and was granted permission to go along on this trip with his stock. They crossed the Mississippi river on the free bridge at St. Louis. Shortly after crossing the bridge into East St. Louis, about 3:30 a. m., Wegehoft stopped because a stoplight was against him. The engine had been "missing a little" and while waiting for this light to change, Wegehoft said that "there is something wrong with it" (engine), but he "hated to stop there," because, said Wegehoft, "it is dangerous around here. This is a gangsters' layout. I will try to get up to that light there." There was a street light "two or three blocks from the stop light," and Wegehoft drove ahead to this street light, "a big arc light," pulled to the right-hand curb and stopped to remedy whatever was wrong with his engine. The truck was stopped in front of an old brewery building. "There was a drive running into the building and the rear part" of the truck was over this driveway, "so that there was not room enough for a vehicle to get in or out through the drive." Wegehoft and plaintiff were sitting in the truck cab and when Wegehoft stopped to repair his engine he got out on the left, the driver's side, and plaintiff got out on the right. Wegehoft passed around in front of the truck and to the right side of the engine and lifted the hood and plaintiff was holding a flashlight so Wegehoft could better see. At this time a stranger to both plaintiff and Wegehoft "came up (on the sidewalk) and told us to get away from there durned quick, and he was cursing us all the time, and I thought at the time that they wanted to get in and out of this passageway. After he got to cursing I thought something else. The first time I looked at the man I didn't see a gun, but when I looked again I saw a gun in his right hand. The gun was a forty-four. When I saw a gun in his hand I went back to the truck and shut the door. Mr. Wegehoft said: `As soon as I get this spark plug fixed we will be gone,' and the man kept on cursing and told us to get out of there quick. He said: `There is nothing wrong with your truck.' Mr. Wegehoft was under the hood fixing the wire. When the fellow spoke and I saw he had the gun and I got back into the car; Mr. Wegehoft finished up with the truck and then came around to get into his seat. A couple a minutes elapsed between the time that I crawled back into the seat and the time when Mr. Wegehoft moved away from the engine. The man with the gun was cursing all of that time and telling us to move on. Mr. Wegehoft came around on his side and the man stopped him and said, `Can you identify me?' Mr. Wegehoft said, `No, I don't know you.' The man had the gun in his right hand at that time. If he had shot Mr. Wegehoft I would have been in an awful fix as I couldn't drive the truck. No shots were fired while Mr. Wegehoft was standing by; but as soon as he came towards the door of the cab two shots were fired. I don't know what became of the first shot, but the second struck me in the right arm. The right door of the cab was closed and the window up. From the time when the man first spoke to us and told us to move on to the time I was shot was three or four minutes. I did not know how to drive the truck — never drove one in my life. After I was shot I said to Mr. Wegehoft: `Go on, he shot my arm off,' and we drove on towards the stockyards. When the shot was fired Mr. Wegehoft was standing by the door. He had not yet gotten in the truck. When the second shot was fired he was in the car and had tried to start the engine, and the truck was moving just a little. I don't know who the man was who had the gun. The man weighed about 160 pounds, I suppose. The shot passed right through the glass in the door right through my arm. When the man first came up I saw Mr. Wegehoft look at him, and then he went back to work on his spark plug. That was at the time I first saw the man. When I looked at him again I saw a gun and got into the...