Davis v. Terminal R. Ass'n of St. Louis, No. 45367

CourtUnited States State Supreme Court of Missouri
Writing for the CourtSTONE; EAGER, P. J., and STOCKMAN; LEEDY
Citation299 S.W.2d 460
PartiesQuincy Cooper DAVIS, Plaintiff-Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a corporation, Defendant-Appellant
Decision Date10 December 1956
Docket NumberNo. 2,No. 45367

Page 460

299 S.W.2d 460
Quincy Cooper DAVIS, Plaintiff-Respondent,
v.
TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a corporation,
Defendant-Appellant.
No. 45367.
Supreme Court of Missouri, Division No. 2.
Dec. 10, 1956.
Motion for Rehearing or for Transfer to Court en Banc Denied
Jan. 14, 1957.

Page 462

Warner Fuller, John P. Montrey, St. Louis, for (defendant) appellant.

Harry R. Bracy, Henry D. Espy, St. Louis, for (plaintiff) respondent.

STONE, Special Judge.

Defendant, Terminal Railroad Association of St. Louis, appeals from a judgment of $5,000 for actual damages and an additional $5,000 for punitive damages awarded to plaintiff, Quincy Cooper Davis, by reason of an alleged assault upon plaintiff between 9 p. m. and midnight on November 13, 1954, by George L. Schlueter, one of defendant's special agents. Plaintiff, then twenty-six years of age and an employee of Fitzsimmons Coal Company, was shot five times by Schlueter shortly after plaintiff emerged from the basement of a building situate on a tract in defendant's railroad yards in St. Louis and occupied by Fitzsimmons as lessee.

Upon trial of the case, plaintiff explained that, after finishing work about 2 p. m. on the day of the shooting (a Saturday), he had worked on his automobile until about 8:30 p. m. and then had gone into the basement of the Fitzsimmons building to take a shower and change clothes. Two male friends, who had been with plaintiff while he worked on his automobile, also had entered the basement and, with plaintiff, had been engaged (as they said) in nothing more pernicious than 'talking' and drinking two quarts of beer purchased at a nearby tavern. Although sharply disputed, plaintiff's evidence was that the basement door had been off its hinges for three to six months and that, on other occasions, plaintiff had been in the basement after working hours. In any event, plaintiff and his companions were found in this basement locker and shower room during the evening of November 13, 1954, as Schlueter was patrolling and checking the premises leased by Fitzsimmons, a service regularly provided by defendant's special agents.

After directing that plaintiff and his friends get out of the basement, Schlueter waited outside and, as each man came through the door, asked his name and address, 'patted him down for weapons,' and told him to stand against the wall of the building. There was a sharp conflict in the testimony as to what occurred when plaintiff, the last man to leave, emerged from the basement. Plaintiff's evidence was to the effect that he came out of the basement with his hands in the air and was searched as he was 'coming right outside the door'; that, after 'ducking' an attempted blow by Schlueter with his flashlight, plaintiff had walked 'away from him (Schlueter) about ten feet' when Schlueter called 'halt'; and that, when plaintiff promptly turned around with his hands in the air, Schlueter shot him five times. Defendant's version was that, when plaintiff came out of the basement, he refused to give his name or divulge what he had been doing, stating that was none of Schlueter's business; that, when Schlueter undertook to 'pat him down,' plaintiff began to grapple and fight with Schlueter; that, after Schlueter had broken loose, plaintiff came at him and engaged in another scuffle or tussle, in the course of which plaintiff said 'that he had a gun and would shoot my (Schlueter's) head off'; that, Schlueter having broken away a second time and having drawn his pistol, plaintiff repeated the threat to 'shoot your head off,' again advanced toward Schlueter, and reached for his (plaintiff's) rear pocket; and, that thereupon Schlueter fired twice and, when plaintiff's right hand 'jerked forward,' fired three more times. Schlueter testified that he shot because 'I thought my life was in immediate danger.'

Defendant's principal complaint upon appeal is that the trial court erred in giving

Page 463

plaintiff's verdict-directing instruction 1, because it 'gave the jury a roving commission,* failed to submit the hotly disputed factual issues to the jury, (and) did not provide * * * sufficient facts to guide the jury in determining plaintiff's right to recover.' Pointing out the 'sharp, irreconcilable conflict in the factual versions as to the manner in which the shooting occurred,' defendant argues, in substance, that instruction 1 was reversibly erroneous because plaintiff's version of the facts (which, in the language of defendant's counsel, showed 'an aggravated, malicious, cold-blooded assault') was not hypothesized in instruction 1 with particularity but a verdict for plaintiff was authorized upon a finding that Schlueter 'did intentionally, wantonly and maliciously shoot plaintiff without reasonable cause or excuse.'

In considering defendant's attack upon instruction 1, we bear in mind the basic and well-established principles that self-defense, upon which defendant relies, is an affirmative defense to be pleaded and proved by the party...

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3 practice notes
  • Hildreth v. Key, No. 7893
    • United States
    • Court of Appeal of Missouri (US)
    • 16 Diciembre 1960
    ...to grant a new trial, the appellate court is inclined to defer to his opinion. Davis v. Terminal Railroad Ass'n of St. Louis, Mo., 299 S.W.2d 460, 465(9); Hancock v. Crouch, Mo.App., 267 S.W.2d 36, 46(18). However, the argument under review was not retaliatory in nature [contrast Nelson v. ......
  • Misch v. C. B. Contracting Co., No. 8385
    • United States
    • Court of Appeal of Missouri (US)
    • 28 Julio 1965
    ...Mo.App., 385 S.W.2d 803(7); Greathouse v. Wolff, Mo.App., 360 S.W.2d 297, 302; Davis v. Terminal Railroad Association of St. Louis, Mo., 299 S.W.2d 460, 465; and cases cited We have no hesitation in saying that it is improper, unfair, and often prejudicial for the plaintiff to omit any ment......
  • Sides v. Mannino, No. 30664
    • United States
    • Court of Appeal of Missouri (US)
    • 13 Junio 1961
    ...an appellate court will not interfere unless there has been a manifest abuse of discretion. Davis v. Terminal R. Ass'n of St. Louis, Mo., 299 S.W.2d 460; Millard v. St. Louis Public Service Co., Mo.App., 330 S.W.2d 147. We cannot believe that the defendants were prejudiced because the quest......
3 cases
  • Hildreth v. Key, No. 7893
    • United States
    • Court of Appeal of Missouri (US)
    • 16 Diciembre 1960
    ...to grant a new trial, the appellate court is inclined to defer to his opinion. Davis v. Terminal Railroad Ass'n of St. Louis, Mo., 299 S.W.2d 460, 465(9); Hancock v. Crouch, Mo.App., 267 S.W.2d 36, 46(18). However, the argument under review was not retaliatory in nature [contrast Nelson v. ......
  • Misch v. C. B. Contracting Co., No. 8385
    • United States
    • Court of Appeal of Missouri (US)
    • 28 Julio 1965
    ...Mo.App., 385 S.W.2d 803(7); Greathouse v. Wolff, Mo.App., 360 S.W.2d 297, 302; Davis v. Terminal Railroad Association of St. Louis, Mo., 299 S.W.2d 460, 465; and cases cited We have no hesitation in saying that it is improper, unfair, and often prejudicial for the plaintiff to omit any ment......
  • Sides v. Mannino, No. 30664
    • United States
    • Court of Appeal of Missouri (US)
    • 13 Junio 1961
    ...an appellate court will not interfere unless there has been a manifest abuse of discretion. Davis v. Terminal R. Ass'n of St. Louis, Mo., 299 S.W.2d 460; Millard v. St. Louis Public Service Co., Mo.App., 330 S.W.2d 147. We cannot believe that the defendants were prejudiced because the quest......

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