Eoff v. Senter
Decision Date | 05 November 1958 |
Docket Number | No. 29940,29940 |
Citation | 317 S.W.2d 666 |
Parties | Jessie EOFF (Plaintiff), Respondent, v. Ransom T. SENTER (Defendant), Appellant. |
Court | Missouri Court of Appeals |
John D. Hasler, St. Louis, Charles Goodman, Clayton, for appellant.
Donald S. Hilleary, Harry L. Hilleary, St. Louis, for respondent.
HOUSER, Commissioner.
This is an action for actual and punitive damages. A trial jury returned a verdict for plaintiff for $325 actual and $2,000 punitive damages and defendant appealed.
The petition in one count alleged that plaintiff was struck by defendant's automobile as a result of defendant's negligence in failing to warn, in failing to maintain a careful lookout, and (in paragraph V) in negligently starting up his automobile 'while the plaintiff was in front of said automobile in a position of danger of being struck and collided with by the automobile of the defendant.' In paragraph VI plaintiff alleged that defendant 'in starting and operating his automobile forward with the plaintiff standing immediately in front of him, he realized, or should have realized that there was a strong probability that serious harm might result and that in so doing under the aforesaid circumstances the conduct was reckless and wanton.' Plaintiff prayed separately for actual and punitive damages. Defendant filed a motion to require plaintiff to plead more definitely and certainly wherein and in what manner defendant was wanton and reckless. This motion was overruled, whereupon defendant filed a general denial coupled with a plea of contributory negligence.
The facts favorable to the prevailing party are as follows: Plaintiff, an employee of McDonnell Aircraft Company in St Louis County, was assigned to guard the south entrance to one of the company's parking lots. Banshee Road, a public thoroughfare, ran by but did not abut on the south side of the lot. There was a space between, occupied by a railroad track. Access to the parking lot from the road was by an entrance drive which ran through a railroad underpass. Plaintiff had orders not to allow anyone to enter the lot through this entrance unless he had a blue badge entitling him to park in that restricted area. Plaintiff was stationed 'just off' Banshee Road, about 30 feet from the edge of the road. Defendant, an employee of the company, drove off Banshee Road, headed into the entrance drive and stopped his automobile. Plaintiff walked to the driver's side of defendant's car and asked defendant if he had a blue badge. Defendant had a 'clock' (identification) badge, which he exhibited, but not a blue badge. Informed that he could not enter without a blue badge, defendant wanted to know why. Plaintiff told him 'That is the instructions I have.' Defendant informed plaintiff that he had been parking in that lot 'all the time' and had been entering at that place; that he had been on a different shift and this was his first day on the new shift; that he would like to come in just this one time and then make different arrangements in the future. Plaintiff refused to admit him and directed defendant to drive around and park in another lot. There was no profane language, no cursing, no threats. Defendant was not 'particularly hostile or objectionable.' Defendant did not raise his voice to plaintiff. Finally defendant said 'Well, unless there is something larger than this car in front of me to stop me I am going in.' Plaintiff said 'I will be in front of you.' Plaintiff then walked around in front of defendant's car, stood about two feet in front of the automobile and extended his hands, signaling a stop sign with his left hand and a right turn with his right hand. Through the windshield plaintiff could clearly see defendant sitting in the automobile. Four or five seconds after plaintiff gave defendant these motions 'the automobile took a lunge forward,' without any sounding of the horn. Plaintiff had time to put his hands out in front of him and jump up into the air. He landed on top of the hood on his stomach, spread out on the hood of the car, his head six or eight inches from the windshield. His arms were stretched out, down and wrapped around the hood. He was straddling the ornament. After plaintiff landed on the hood defendant speeded up, and proceeded through the underpass, through the parking lot gate and into the parking lot, at a speed of about 15 miles per hour. With plaintiff on the hood of his automobile defendant drove a total distance variously estimated at 115 to 200 feet. He made a circle or 'U' turn in the lot and then parked his car. There were skid marks where he made the 'U' turn and where he applied the brakes to stop. Witnesses heard his tires 'squeal' as he made the turn. Plaintiff remained on the hood of the car until the car stopped, then slid off. Various guards assembled and remonstrated with defendant, who said he had been pushed around by the guard force as long as he intended to; that he would not 'take it' any longer. One witness quoted defendant as saying that he was 'tired of getting pushed around by the damn guards.' Two days later plaintiff swore out an affidavit before a magistrate judge charging defendant with assault, and plaintiff testified in the trial of the criminal charge. Defendant was fined $25 on a reduced charge of careless and reckless driving.
Appellant's first point is that the court erred in submitting the case to the jury because the petition is a nullity in that it unites in the same count inconsistent, contradictory and self-destructive charges of negligence and reckless and wanton conduct. The propriety of the action of the court in submitting the case to the jury on inconsistent, contradictory and repugnant theories is not before us on this appeal. The precise question appellant raises is the sufficiency of the petition--whether the petition § a felo de se. This question has been before the Supreme Court on at least four occasions.
In Raming v. Metropolitan St. Ry. Co., 157 Mo. 477, 57 S.W. 268, upon which appellant places his chief reliance, the petition in one count alleged that defendant's servant 'carelessly and negligently' pushed plaintiff off a streetcar and 'carelessly and wantonly' ran over him. Four of the seven judges, sitting en banc, concurred in a holding that the petition was bad for duplicity because the same act could not be botn negligent and wilful; that the allegations were so repugnant that any amount of testimony in support of them would be equally repugnant; that the petition was a felo de se, and that it was error to overrule a demurrer to the evidence.
In O'Brien v. St. Louis Transit Co., 212 Mo. 59, 110 S.W. 705, 706, the petition in one count alleged that defendant's servant beat and shot plaintiff's husband 'negligently and with criminal intent.' The petition was based upon Sec. 2864, R.S.Mo., 1899, authorizing recovery for death 'occasioned by the negligence, unskillfulness or criminal intent,' etc. All seven of the judges, sitting en banc, concurred in a holding that the petition was good after verdict, and not a felo de se. Stating that the rule in the Raming case had not been followed in all its strictness in the later cases, Woodson, J., ruled that the petition stated a cause of action, whether the servant shot plaintiff's husband negligently or with criminal intent; that the only objection to the petition was that it stated 'two causes of action in one and the same count * * * or, more accurately speaking, it states a single cause of action doubly;' that while this is inconsistent pleading, subject to motion to elect upon which of the two causes of action plaintiff would go to trial and subject to a demurrer to the petition, the doctrine of felo de se has no application because that doctrine operates only where one cause of action stated is destroyed by another which shows that no cause of action exists in fact.
In Miller v. Harpster, 273 Mo. 605, 201 S.W. 854, the petition in one count alleged that defendant 'carelessly, negligently, recklessly, and wantonly' ran a car against plaintiff. Division No. 1 held that the petition stated a good cause of action 'upon whichever horn of the dilemma presented by the appellant the evidence might be hung' and that the trial court did not err in overruling a demurrer to the evidence; that appellant, not having sought reformation of the petition or an election between rival theories before trial, could not complain on appeal of 'the course which he invited.'
In Reel v. Consolidated Inv. Co., Mo.Sup., 236 S.W. 43, 46, the petition, in one count but in two parts, alleged in the first part the existence of the relationship of passenger and carrier on an elevator and an injury to plaintiff while a passenger, and contained a prayer for damages. In the second part plaintiff alleged the continuous operation of the elevator by the defendant after receiving knowledge of its dangerous condition and notice that it could not be run without imperiling lives, an injury during the period of such continued operation and a characterization of defendant's conduct as 'reckless and wanton,' followed by a prayer for punitive damages. Division No. 1 held that, construing the petition as a whole, it reasonably appeared that the injury was charged to have been caused by defendant's negligence, and that the petition was good after verdict; that the petition was sufficient to authorize an award of punitive damages.
In Carrow v. Terminal R. Ass'n of St. Louis, Mo.App., 267 S.W.2d 373, 377, the petition in one count set up eight grounds of negligence, together with a charge that in operating the train over the crossing under the circumstances defendant was guilty of wanton misconduct in 'wilfully and negligently' failing to sound a warning or slacken the speed of or stop the train etc. This court held that the joinder of charges of both negligence and wilfulness did not render the petition a nullity so as to be subject to the objection that the charges were...
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