Billings v. Stanley

• Decision Date: 23 August 1988
• Docket Number: No. WD,WD
• Citation: Billings v. Stanley, 759 S.W.2d 277 (Mo. App. 1988)
• Parties: Jay N. BILLINGS, Appellant, v. Billy J. STANLEY, Respondent. 40211.
• Court: Missouri Court of Appeals

Page 277

759 S.W.2d 277

Jay N. BILLINGS, Appellant, v. Billy J. STANLEY, Respondent.

No. WD 40211.

Missouri Court of Appeals Western District.

Aug. 23, 1988.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 4, 1988.

Application to Transfer Denied

Nov. 15, 1988.

Erwin L. Milne, Stockard, Andereck, Hauck, Sharp & Evans, Jefferson City, for appellant.

William L. Webster, Atty. Gen., Gary L. Gardner, Asst. Atty. Gen., Jefferson City, for respondent.

Before TURNAGE, P.J., and SHANGLER and MANFORD, JJ.

TURNAGE, Presiding Judge.

Jay N. Billings sued Billy J. Stanley for personal injuries. The court entered judgment on a jury verdict in favor of Stanley. On appeal Billings complains about instructions and evidentiary rulings. Affirmed.

Billings was driving a truck loaded with soybeans from Versailles to Mexico, Missouri, in November of 1981. Billings pulled into the state weigh station at Kingdom City where Stanley was on duty as a commercial vehicle inspector. Stanley checked the weight of the Billings truck and called Billings into the scale house to show him the weight on the scale beam which revealed the truck to be overweight on gross weight. Billings thereupon drove his truck on to the scale from the opposite direction and after checking the weight in that manner Stanley advised Billings to park his truck and bring his paper work into the scale house. Billings took his paper work into the scale house and began a discussion with Stanley concerning the weight. Billings had a weight ticket from a private scale which indicated his truck was not overweight and argued from this that he should be allowed to shift his load in order to try to comply with the law. Stanley advised him that the problem was not with the weight on any one axle but with the fact that his gross weight was beyond the limit allowed. Stanley advised that under this circumstance it would be impossible to shift the load in order to bring the weight of the truck into compliance with the law and he would have to give Billings a ticket.

From this point the evidence diverged. Billings stated that while they were discussing the matter Stanley moved some distance away, gave a loud yell, and ran at Billings and struck Billings so that he was forced against both sides of the outside door and was caused to stumble down the steps. He contended that because of the force exerted by Stanley in ejecting him from the scale house he was caused serious injury to his back. This version was corroborated by the testimony of Billings' friend.

Conversely, Stanley testified that after he had written Billings a ticket they discussed the weight problem. Stanley stated that he requested Billings to leave but Billings refused and Stanley lightly placed his hands on Billings and led him out of the scale house. Under the Stanley version, Billings was not struck and did not hit the door as he went out and descended the steps in a normal manner. The Stanley version was corroborated in the main by two vehicle inspectors and a highway patrol trooper who were present at the time of the altercation.

Although Billings pled both negligence and intentional striking and shoving, he submitted his case on the theory that he was intentionally shoved and thereby sustained injury. Stanley submitted an instruction in the form of MAI 32.09, modified in paragraph first by changing "plaintiff remained on defendant's premises" to "plaintiff remained on the premises" and by the deletion of a comma in paragraph second. This instruction submitted the affirmative defense of ejecting a trespasser by use of reasonable and necessary force. Billings contends the modification was improper because Stanley had no authority to tell Billings to leave the scale house. Billings contends that MAI 32.09 is designed as a defense for the owners of property and because Stanley did not own the scale house he could not assert the defense that he used only such force as was reasonable and necessary to remove Billings from the premises.

Stanley testified that he had authority to request Billings to leave the scale house and his testimony was not challenged or contradicted by Billings. In 6A C.J.S. Assault and Battery § 94, pg. 487 (1975), it is stated "one who is lawfully in charge of premises, and has requested another to leave whom he had a right so to request, may lawfully use as much force as is necessary to remove such other...."

Section 304.230.3, RSMo 1986, provides that commercial vehicle inspectors shall be appointed to supervise or operate weight stations. This provides statutory support for the testimony of Stanley that he had authority to request Billings to leave. Absent any evidence to the contrary, the instruction was supported by evidence and allowed the jury to find that Stanley did have authority to request Billings to leave. Given the authority to request Billings to leave, it follows that Stanley had the right to use reasonable force to cause Billings to leave when Billings refused to do so. Note 2 under MAI 32.09 states that the instruction given here is the proper instruction when a person lawfully entered the premises but declined to leave when requested to do so. That was the situation presented here, when Billings was requested to enter the scale house but thereafter refused to leave when requested to do so by Stanley.

It is Billings contention that only highway patrol troopers had the authority to request him to leave as they have the power of arrest, and Stanley does not. There is no requirement that a person must posses the power of arrest in order to have the authority to request another to leave the premises over which the person making the request has charge. Stanley testified he had authority to make the request that Billings leave and the statute lends support to that statement. In light of the evidence, the instruction was properly modified to state "the premises" instead of "defendant's premises."

No error is found in the removal of the comma in paragraph second. Nor is there any prejudicial error in the failure to note on the instruction that it was MAI 32.09 modified.

Billings next contends error in admitting the testimony of two vehicle inspectors and a highway trooper that Billings made statements after Stanley had left which displayed a racial bias on the part of Billings against blacks. Billings is white and Stanley is black. The witnesses related several statements of an obscene and profane nature made by Billings in reference to Stanley and his race. The objection was that such statements were irrelevant. In Barraclough v. Union Pac. R. Co., 331 Mo. 157, 52 S.W.2d 998, 1002 (1932), the court quoted from a...