Boonville Nat. Bank v. Thompson

• Decision Date: 30 June 1936
• Docket Number: No. 33312.,33312.
• Parties: BOONVILLE NAT. BANK et al. v. THOMPSON.
• Court: Missouri Supreme Court

99 S.W.2d 93

BOONVILLE NAT. BANK et al. v. THOMPSON.

No. 33312.

Supreme Court of Missouri, Division No. 2.

June 30, 1936.

Rehearing Denied August 20, 1936.

Motion to Transfer to Court in Banc Overruled November 17, 1936.

Appeal from Circuit Court, Jackson County; Darius A. Brown, Judge.

Action by the Boonville National Bank, a corporation, against Milton Thompson, wherein John T. Carlon, receiver, was made party plaintiff on the bank going into receivership, and Maud Thompson as, executrix of the estate of Milton Thompson, deceased, was made a party defendant on the death of Milton Thompson. From an adverse judgment, the plaintiff appeals.

Affirmed.

D. W. Shackleford, of Jefferson City, John H. Windsor, of Boonville, and Walter A. Raymond, of Kansas City (Hume & Raymond, of Kansas City, of counsel), for appellants.

Alfred M. Seddon, Charles M. Bush, and Ryland, Stinson, Mag & Thomson, all of Kansas City, for respondent.

COOLEY, Commissioner.

This suit was brought originally by the Boonville National Bank against Milton Thompson, for money had and received. Thereafter the bank went into receivership, the receiver being made party plaintiff. Thompson died and his widow as executrix was made party defendant. Amended petitions were filed from time to time, the case being finally tried on the fourth amended petition. The trial was to a jury. At the close of the plaintiffs' evidence plaintiffs took a nonsuit with leave to move to set the same aside. Such motion was duly filed, was overruled by the court, and plaintiffs appealed. Respondent has filed here a motion to dismiss the appeal, contending that the nonsuit was voluntary, hence that no appeal lies therefrom. Appellant contends that the nonsuit was involuntary. If so, the appeal was properly taken. A final judgment of dismissal was duly entered. Before proceeding to the merits of the case we shall dispose of the motion to dismiss the appeal.

The record before us shows that at the close of plaintiffs' evidence "the defendant requested the court to give an instruction in the nature of a demurrer to the evidence. The court marked the same `given,' to which plaintiffs excepted, and thereupon and before said instruction was read to the jury, plaintiffs, deeming the ruling of the court precluded them from recovery, suffered and took an involuntary nonsuit with leave to move to set the same aside." Said instruction was a peremptory direction requiring the jury to find for the defendant.

The bill of exceptions shows that immediately preceding the offering of said peremptory instruction and the court's ruling thereon this occurred: The plaintiffs announced that they rested their case, whereupon the court said to the jury: "Gentlemen, under the view the court takes of the law under the facts in this case, whether the court is right or not we can never tell until the upper court passes upon it, but, in the view the court takes, there is nothing further for you to consider in this case. You will be excused now. Please report to the Jury Waiting, Room on the fifth floor."

Then followed the offering by defendant of the peremptory instruction, the court's action thereon, plaintiffs' exceptions, and the nonsuit. No question is or can be raised as to the timeliness or sufficiency of plaintiffs' objections and exceptions to the court's action. The sole question on the motion to dismiss the appeal is: Was said peremptory instruction "given" by the court, within the meaning of the law, so that the plaintiffs were then precluded from recovery, or, in order to make the nonsuit involuntary, from which an appeal would lie, must they have waited until the instruction was actually read to the jury?

The statute, section 967, R.S.1929 (Mo. St.Ann. § 967, p. 1240), provides that "when the evidence is concluded, and before the case is argued or submitted to the jury or to the court sitting as a jury, either party may move the court to give instructions on any point of law arising in the cause, which shall be in writing and shall be given or refused." It further provides that the instructions given shall be "carried by the jury to their room for their guidance to a correct verdict," and shall be by the jury returned into court at the close of their deliberations and filed by the clerk as part of the record. The statute says nothing about the court reading the instructions to the jury. Naturally, refused instructions would not be read or delivered to the jury, and in case a peremptory instruction is given, which leaves nothing for the jury to deliberate upon, it happens in practice usually, or at least frequently, that the jury, at the direction of the court, signs and returns the directed verdict without leaving the jury box. Now, at just what point in the procedure is such peremptory instruction to be deemed "given," thereby precluding the plaintiff from recovery? Must it be actually read to the jury?

In a recent decision the St. Louis Court of Appeals has so held, viz.: Owens v. Washington Fidelity National Ins. Co., 85 S.W.(2d) 193, 194, which case was followed by the same court in Kane v. Kaysing Iron Works, 89 S.W.(2d) 532, 534. In the Owens Case the court reviews a number of decisions of this court.

In that case portions of the record indicated that the court had merely "announced its intention to give and read the instruction in the nature of a demurrer to the evidence" but had not actually given it. But another record entry showed that, as in the instant case, the court had marked the instruction "given," but that it was not read to the jury. Both cases seem to proceed upon the theory that such instruction cannot be deemed given until actually read to the jury. In the Kane Case the court says, 89 S.W.(2d) 532, loc. cit. 534: "The doctrine deducible from the long line of decisions of our Supreme Court on this question is that, before a plaintiff can take an involuntary, nonsuit, the court must actually `give' to the jury the peremptory instruction offered by the defendant directing a verdict for the defendant. In other words, the court must actually read such instruction to the jury, and the record must show that such action was taken by the court; thereby precluding and preventing a recovery by plaintiff in that particular trial. The mere expression by the court of an intention to give such an instruction is not sufficient to make a nonsuit thereupon taken by a plaintiff an involuntary one, nor will the mere marking of the word `given' on such an instruction make the nonsuit involuntary if the record fails to show that such instruction was actually given and read to the jury by the court."

The Owens Case cites the following decisions of this court: Greene County Bank v. Gray, 146 Mo. 568, 48 S.W. 447; McClure v. Campbell, 148 Mo. 96, 112, 49 S. W. 881, 885; Gray v. Ward, 234 Mo. 291, 295, 136 S.W. 405, 407; Hogan-Sunkel Heating Co. v. Bradley, 320 Mo. 185, 7 S.W.(2d) 255; Segall v. Garlichs, 313 Mo. 406, 281 S.W. 693. The cases cited and others of like tenor do hold that it is not sufficient in order to make a nonsuit involuntary that the court had merely indicated or expressed an intention to give a peremptory instruction to find for the defendant, but that such instruction must have been actually given. But in none of said cited cases, nor in any we have found, except said Owens and Kane Cases, has this court or the Courts of Appeals said that such peremptory instruction must be read to the jury before it can be deemed given. In one case, Bank of Rockville v. Corbin, 276 S.W. 880, 881, the Springfield Court of Appeals intimates that such instruction is "given" if the court marks it as given. The court says: "The instruction to the jury directing a verdict for the defendant must be in writing and actually given by the court to the jury; that is, it must be actually given to the jury or marked by the court as given."

In Kelly-Goodfellow Shoe Co. v. Prickett, 84 Mo.App. 94, 100, this occurred: "The record shows that counsel for interpleader announced that the evidence was all in. `Counsel for plaintiff presents demurrer to the court, and the court announced to counsel for interpleader that he would sustain the same. To which ruling of the court interpleader objected and excepted at the time and still excepts.'" The interpleader thereupon took a nonsuit with leave. The Court of Appeals said: "This shows an involuntary nonsuit from which an appeal will lie. We interpret this quotation from the record to mean that the court did actually pass on the demurrer. The court announced the ruling in the words `that he would sustain the same.' That means not that he would in the future sustain it, but that he did then sustain it. Such was the evident understanding of counsel for he excepted to the ruling and such was the understanding of the court for it allowed such exception."

This court, in Lewis v. Center Creek Mining Co., 199 Mo. 463, 468, 97 S.W. 938, quoted the above language of the Court of Appeals, without apparent disapproval.

In the instant case it seems to us that when the court marked the peremptory instruction "given" it did more than merely indicate an intention to give it. We think the court thereby ruled — acted — upon the instruction — in effect gave it. Suppose the court had said, "I hereby sustain defendant's demurrer and give this instruction." Would not that have been an actual ruling? The court did not so state in audible words, but did in substance and effect so state in writing, by marking the instruction "given." It is suggested that, after marking the instruction "given" the court might yet have reconsidered and refused to let it go to the jury. So, we apprehend, might a trial court reconsider and recall various rulings made in the progress of a trial, before verdict, such as in the matter of admission or rejection of evidence, the giving or refusing of instructions, etc., which does not alter the fact that the court had ruled upon such matters...