Lindsay v. McLaughlin
| Decision Date | 03 March 1958 |
| Docket Number | No. 22595,22595 |
| Citation | 311 S.W.2d 148 |
| Parties | Arch C. LINDSAY, Respondent-Plaintiff, v. Guy F. McLAUGHLIN, Appellant-Defendant. |
| Court | Missouri Court of Appeals |
Glennon E. McFarland, Kansas City, for appellant.
Francis G. Hale, Liberty, for respondent.
This is an action in forcible entry and detainer; Section 534.020 RSMo 1949, V.A.M.S. The trial to a jury resulted in a verdict in favor of the plaintiff in the amount of $1.00 for damages only, and nothing for rent. Judgment was entered accordingly, and defendant perfected his appeal.
His first contention is that the court erred in denying his motion for directed verdict offered at the close of plaintiff's evidence, because no submissible issue was made. We cannot consider this point because, when defendant's motion was overruled, he proceeded to introduce evidence and thereby waived his right to complain of the court's action. For an array of cases so holding, see Note No. 50 under Section 510.280 RSMo 1949, V.A.M.S.
The second point in the brief is that the court erred 'in refusing a motion to dismiss on behalf of the defendant after verdict or in failing to grant defendant a new trial because plaintiff failed to prove facts sufficient'to make a submissible case. There was no 'motion to dismiss after verdict'; and no motion for a directed verdict at the close of all the evidence. On the contrary, the defendant joined, by instructions, in submitting the case to the jury. In his motion for new trial, defendant did ask the court to set aside the verdict 'because plaintiff failed to prove facts sufficient to prove a cause of action'; but he did not assign or allege that the court erred in overruling his motion for directed verdict at the close of all the evidence. Under such circumstances, can he now raise the question of submissibility on the grounds assigned?
The most recent case we have found discussing this question is Ukman v. Hoover, Mtr. Exp. Co., Mo.Sup., 269 S.W.2d 35, at page 36, wherein the court said: (Last italics supplied.)
In the very recent case of 6551 Collins Avenue Corp. v. Millen, Fla.App., 97 So.2d 490, the Supreme Court of Florida discussed this question, and held, under its Rule 2.7 of Civil Procedure, 31 F.S.A., which is identical with our Section 510.280 and 510.290, that unless the defendant filed a motion for directed verdict at the close of all the evidence, he could not raise the question of submissibility on appeal. The court pointed out that its Rule 2.7 is almost verbatim with Rule 50, Federal Rules of Civil Procedure, 28 U.S.C.A., and reviewed many federal decisions holding to the same effect.
In support of his contention that he can raise the question of submissibility under the state of the record, defendant cites: Oganaso v. Mellow, 356 Mo. 228, 201 S.W.2d 365; Lilly v. Boswell, 362 Mo. 444, 242 S.W.2d 73; Adair County v. Urban, Mo., 250 S.W.2d 493. In the Organaso and Adair County cases it affirmatively appears that the defendant had filed a motion for directed verdict at the close of all the evidence. In the Lilly case the defendants appealed from an order sustaining plaintiff's motion for new trial on the limited ground of inadequacy of the verdict for damages, and contended that the evidence did not make a submissible issue of liability. The court said the defendants had not filed any after-trial motions, but that whether a submissible case was made was inherent in every case. It does not appear from the opinion whether the defendant had filed a motion for a directed verdict at the close of all the evidence. However, the court cited Nelson v. Kansas City, 360 Mo. 143, 227 S.W.2d 672, 673, in support of its conclusion; and it does appear in the Nelson opinion that the defendant had filed a motion for directed verdict at the close of all the evidence.
In cases where new trials have been granted for erroneous instructions, the courts have frequently examined the evidence to determine whether a submissible case was made, because errors in instructions are immaterial upon appeal, if the plaintiff's case should not have been submitted. Bootee v. Kansas City Public Service Co., 353 Mo. 716, 183 S.W.2d 892. But we do not believe those cases are decisive of the issue presented by the record in the instant case.
We have discussed this question at some length because the defendant, in his brief, earnestly contends that he could raise the question of submissibility on the theories just enumerated. But we are of the opinion that he cannot.
However, in the Ukman case, supra, the court pointed out that the defendants in that case, in their motion for new trial, and carried forward in their brief, assigned error in the giving of plaintiff's principal instruction because there was no evidence to support the theory of liability submitted; and held that the question of submissibility must be determined in considering the propriety of the giving of said instruction. The same situation exists in the instant case, and we must determine whether the evidence supports plaintiff's theory as summitted in this principal instruction.
As stated above, this is a forcible entry and detainer action. Plaintiff claimed he was in peaceable possession of Lots 23 and 24, Block 6, Maple Park Addition, Kansas City, Clay County, Missouri; and that the defendant, without the consent and against the will of plaintiff, entered into possession of said real estate and still retains possession thereof. Plaintiff's Instruction No. 1 submitted that issue.
Defendant does not deny that plaintiff had been in possession of the lots prior to 1952; nor does he deny that he has taken and retained possession of the property since about that time. His contention is that plaintiff voluntarily surrendered possession to him, and that plaintiff's own testimony so shows; consequently, the evidence fails to make a submissible issue of forcible entry and detainer.
We shall examine the evidence on the question of whether plaintiff voluntarily surrendered possession, and in doing so, we must review the evidence from a standpoint favorable to plaintiff and give him the benefit of all reasonable inferences from all the evidence, and disregard all of defendant's unfavorable evidence.
Plaintiff owned and had his home on a lot immediately south and adjacent to the controversial lots. In about 1942, without any right or authority, and without knowledge of the ownership, he enclosed lots 23 and 24 with a fence and kept a cow, chickens, ducks, dog pen, trash can, rain gauge, and occasionally parked his truck and car thereon. About 1949, Kansas City annexed this general territory, and the plaintiff was notified by the city authorities to remove the cow, chickens and ducks which he did, but left the other items on the lots.
In the spring of 1952, defendant purchased a lot immediately north and adjacent to the controversial lots. When he began the construction of a house thereon, he requested the plaintiff to remove the fence so that he could use lots 23 and 24 to store building material and as a means of access for machinery to carry on the construction. Plaintiff testified that he had no further use for the fence, and removed it at defendant's request. For some time thereafter, plaintiff kept his trash barrel, rain gauge and the dog pen on the lots, and occasionally mowed the grass, and had seen the defendant mow the grass.
In the late summer of 1955, plaintiff had a conversation with the defendant relative to the possession of these lots. He was asked:
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