Martin v. Yeoham

• Decision Date: 02 October 1967
• Docket Number: 24526,Nos. 24527,s. 24527
• Citation: 419 S.W.2d 937
• Parties: Irven Lee MARTIN, III, Plaintiff-Respondent, v. Carl J. YEOHAM, Defendant-Appellant. Irven Lee MARTIN, III, Appellant, v. David MARKOWITZ, Respondent.
• Court: Missouri Court of Appeals

Page 937

419 S.W.2d 937

Irven Lee MARTIN, III, Plaintiff-Respondent, v. Carl J. YEOHAM, Defendant-Appellant.

Irven Lee MARTIN, III, Appellant, v. David MARKOWITZ, Respondent.

Nos. 24527, 24526.

Kansas City Court of Appeals, Missouri.

Oct. 2, 1967.

Thomas M. Howell, Kansas City, for Irven Lee Martin, III.

George W. Meyer and Roger W. Penner, Meyer, Smith & Penner, Kansas City, for Carl J. Yeoham.

George W. Meyer and Roger W. Penner, Meyer, Smith & Penner, Kansas City, for David Markowitz.

CROSS, Judge.

On July 20, 1963, plaintiff Irven Lee Martin, III received a bullet wound from a revolver fired by defendant Carl J. Yeoham. Thereafter plaintiff filed this action for personal injury damages against three defendants, to-wit: Carl J. Yeoham, his wife, Mary Yeoham, and David Markowitz. Plaintiff undertook to recover damages from defendant Carl J. Yeoham on the ground that he was negligent in firing the weapon and inflicting the wound, and from defendants Mary Yeoham and David Markowitz on the theory they were partners of defendant Carl J. Yeoham as owners and operators of a tavern, and consequently liable for his allegedly negligent acts. Defendants Mary Yeoham and Carl J. Yeoham each filed counterclaims against plaintiff for damages for alleged assault and battery committed upon Mrs. Yeoham by plaintiff. During the course of trial to a jury plaintiff dismissed his action as to defendant Mary Yeoham and thedefendant Carl J. Yeoham dismissed his counterclaim against plaintiff.

The jury returned a $10,000.00 verdict for plaintiff against both defendants Carl Yeoham and David Markowitz, and found against Mary Yeoham on her counterclaim against plaintiff. Judgment was rendered accordingly. Thereafter, on motion by defendant Markowitz, the trial court set aside the $10,000.00 verdict and judgment rendered against him and entered judgment in his favor. Separate appeals have been taken by plaintiff and defendant Carl J. Yeoham. Plaintiff appeals from the judgment entered in favor of defendant Markowitz and defendant Yeoham appeals from the $10,000.00 judgment in plaintiff's favor. No appeal has been taken by Mary Yeoham from the adverse judgment on her counterclaim.

Plaintiff's petition contains allegations in substance as follows: that defendants (Carl Yeoham, Mary Yeoham and David Markowitz) were owners and operators of the Sunnyside Tavern at 4343 Troost Avenue in Kansas City, Missouri; that defendants Carl Yeoham and Mary Yeoham were in active charge and control of that business and handled the money; that on or about July 20, 1963, while defendants Carl Yeoham and Mary Yeoham were transporting the partnership business receipts, checks, funds and moneys from the Sunnyside Tavern to their home at 215 E. Linwood, defendant Carl Yeoham 'carelessly and negligently discharged a loaded pistol directly in plaintiff's face,' thereby directly and proximately causing him bodily injury; that defendant Carl Yeoham was careless and negligent (a) in moving partnership assets in the nighttime over public streets while armed with a deadly weapon; (b) in failing to exercise ordinary care to avoid discharging a deadly weapon at an innocent person at the time and place in question; (c) in failing to exercise ordinary care to ascertain that plaintiff was an 'innocent person'; and (d) in 'attempting to kill a human being' without first ascertaining his identity; that the negligence of defendant Carl Yeoham was directly attributable to the partnership, and that each member thereof is directly responsible therefor; that the partnership and its members were negligent in permitting Carl Yeoham to transport partnership receipts, funds and moneys, in an automobile over public streets in the nighttime, while possessing a deadly weapon, knowing he was likely to become nervous and discharge such weapon at an innocent person without sufficient cause; and that 'said partnership' and each member were negligent in permitting the use of unlicensed firearms in the partnership business in transporting partnership funds over public streets in the nighttime.

Defendants Carl Yeoham and David Markowitz filed a separate joint answer to plaintiff's petition in which they denied generally its allegations, admitted ownership of the Sunnyside Tavern and pleaded affirmatively to the effect that at the time in question defendant Carl J. Yeoham and his wife Mary were returning to their apartment home at 215 East Linwood Boulevard in their automobile; that upon arrival Mary Yeoham undertook to alight from the automobile, carrying the day's receipts from the tavern and some groceries; that as she started to move from her seat, plaintiff, a young and powerful man and a total stranger, rushed up to the open door of their automobile, suddenly grabbed the clothing and person of Mary Yeoham and violently and repeatedly attempted to pull her from the automobile, thereby committing an assault and battery upon her and putting defendant Carl Yeoham and his wife in great fear of suffering great bodily harm and of being robbed of their property; that while 'this assault' was going on other young men approached the Yeoham automobile on the driver's side, also contributing to the fear and apprehension of the Yeohams; that while the alleged assault and battery were being committed and while defendant Carl J. Yeoham was convinced and believed under all attending facts and circumstances that he and his wife were in imminent danger of great bodily harm and of being robbed, defendant Carl J. Yeoham 'came to the defense of his wife and himself and fired one shot from a pistol in the direction of the plaintiff for the purpose of repelling the attack being made by the plaintiff and saving his wife and himself from bodily harm and from being robbed of their possessions;' that by reason of the attendant facts and circumstances the firing of the pistol shot was justified and was not an act for which defendants are liable under the law; that any injury suffered by plaintiff was the direct and proximate result of his own negligence in rushing up to and seizing the person of Mary Yeoham and that plaintiff voluntarily assumed the risk of his rash and intemperate conduct.

Inasmuch as plaintiff dismissed his action as to defendant Mary Yeoham during the trial there is no need of reference to her answer to his petition.

There is severe conflict between the evidence to plaintiff and defendants relating to material facts and controlling issues. Plaintiff's version of the events leading up to the shooting is substantially as here set out: On the night in question plaintiff, then a young man 21 years of age, went to the Combo Club, a night spot, located at 6536 Troost. He arrived there at approximately nine o'clock P.M. and remained until one-thirty A.M.--'about four and a half hours.' During that time he drank beer and Scotch whiskey, and 'danced and just congregated' with other young persons of his acquaintance, both men and women. Plaintiff left the Combo Club as a passenger in a car with four other young men intending to go to a party which was in progress at an apartment located on Warwick and Linwood (near the vicinity of the Yeoham's apartment). The car in which plaintiff rode was a rust colored Ford of somewhat ancident vintage, belonging to and driven by one Bradford. The other three men in the car were Bert Rookhuyzen, Thomas Dye and Bob Chrane. Three additional cars occupied by plaintiff's acquaintances accompanied the Bradford car, making in all a procession of four cars proceeding to the party. At a traffic light approximately two blocks from Warwick and Linwood a Buick automobile in which the Yeohams were riding to their apartment home (as plaintiff later learned) in some manner fell in line with the 'chain' of cars en route to the party. Arriving at the vicinity of Warwick and Linwood, these vehicles parked at various places. The Yeoham Buick parked at the entrance of an apartment building immediately in front of two unoccupied and unlighted automobiles previously parked at the south curb of Linwood and the Bradford car parked behind these vehicles, approximately fifty feet from the Yeoham Buick. After some discussion with the other occupants of the Bradford car as to the exact location of the party, plaintiff got out of the car and 'trotted' forward to the Yeoham Buick to inquire of its occupants as to where the party was located. His fellow passenger, Bert Rookhuyzen, also alighted from the Bradford car and followed plaintiff as he proceeded to the Yeoham car. Just as plaintiff reached the Yeoham car, the front door on the passenger's side opened, and a light came on inside. He put one hand on top of the open door, put the other hand on top of the car and bent down to ask the occupants where the party was. He assumed that they were persons going to the party. He denied putting his hands on the woman inside the car and pulling her forward and stated that he didn't get a chance to say anything to 'these people'. He testified, 'I bent down and I didn't get anything out. And as soon as my head went in view all that I remember is a tremendous flash and I fell back staggering.' Plaintiff testified at considerable length concerning the nature and extent of his injuries resulting from the gunshot wound. However, our discussion of appeal issues will not require that his testimony in that respect be noted herein.

Bert Rookhuyzen testified that he was following plaintiff to the Yeoham car before the shot was fired. He was about 25 feet behind plaintiff. The witness didn't remember if any one else from the Bradford car was following him at the time but admitted there might have been. He also admitted he had made a statement to the police that 'When Irwen Martin jumped out of the car and got about 15 feet down the street I jumped out and followed him and Thomas Dye followed me.' Rookhuyzen stated he saw the door to the Yeoham car open as plaintiff came up, saw plaintiff...