McLaughlin v. Marlatt
| Decision Date | 30 December 1922 |
| Citation | 246 S.W. 548,296 Mo. 656 |
| Parties | CORWIN McLAUGHLIN, by Next Friend, SEYMORE McLAUGHLIN, v. ANNA E. MARLATT and FRANK MARLATT, Administrators of Estate of LEWIS MARLATT, Appellants |
| Court | Missouri Supreme Court |
Appeal from Livingston Circuit Court -- Hon. Arch B. Davis, Judge.
Reversed and remanded.
Lewis W. Reed, Thos. H. Hicklin and Scott J. Miller for appellant.
(1) Plaintiff was a trespasser on the premises of defendant. 29 Cyc. 444. And defendant owed plaintiff no duty except that of refraining from wantonly or wilfully injuring him. 29 Cyc 442; Turner v. Thomas, 71 Mo. 596; Straub v Soderer, 53 Mo. 38; Kelley v. Kelley, 217 Mo 1; Witte v. Stifle, 126 Mo. 295; Smith v. Packing Company, 82 Mo.App. 9; Schmidt v. Distilling Co., 90 Mo. 293. (2) The act of defendant, in shooting on his own premises at what he presumed to be a fox, without any knowledge on his part that plaintiff or any other person was on the premises and without anything to warn defendant that there might be some person in the vicinity, was not negligence. Christy v. Hughes, 24 Mo.App. 275. (3) The court erred in giving Instruction 16. The contention of defendant is that plaintiff being a trespasser, defendant had a right to shoot on his own land at any object he chose, just so he had no reason to believe there was any human being likely to be injured, and this instruction is misleading and erroneous in assuming that there was liability for damages. This instruction assumes that plaintiff was seen and thought to be a fox. Nothing was seen, only the grass moving. (4) The court erred in giving Instruction 6. There is no contention that defendant had any right to shoot plaintiff and the instruction is misleading and erroneous. (5) The court erred in giving Instruction 4. Defendant was shooting, as he thought, at a fox on his own land where plaintiff had no right to be and where defendant had no reason to suspect there was any human being. The result was the wounding of plaintiff, an inevitable accident, and this instruction is error. (6) The court erred in giving Instruction B. This instruction defines "negligence" and tells the jury that a person using or shooting firearms is required to exercise a high degree of care. This is not the law when applied to the facts in this case, but only where a person knows or has reasonable grounds for believing that there are persons in the vicinity, liable to be injured by the use of such firearms.
Chas. S. Greenwood, Pross T. Cross, Paul D. Kitt and Miles Elliott for respondent.
(1) When plaintiff proved his injury, caused by being shot with a gun in the hands of defendant, he made his case; and defendant must show that he was not chargeable with negligence as an exoneration; or that it was accidental and not intentional, although negligent, by way of mitigation. Morgan v. Mulhall, 214 Mo. 460; Conway v. Reed, 66 Mo. 355; Morgan v. Cox, 22 Mo. 373. (a) Proof of a negligent or careless shooting will sustain an allegation of an unlawful and wrongful shooting. Conway v. Reed, 66 Mo. 346; O'Brien v. Loomis, 43 Mo.App. 35; Gibeline v. Smith, 106 Mo.App. 550; Orschein v. Scott, 90 Mo.App. 366. (2) A person is negligent as a matter of law in firing at an object concealed or partially concealed without taking time to discover what it is, which results in his hitting another person. Rudd v. Byrnes, 156 Cal. 636. (3) As firearms are extraordinarily dangerous, a person who handles such a weapon is bound to use extraordinary care to prevent injury to others, and is held to a strict accountability for a want of such care. 12 Am & Eng. Enc. Law (2 Ed.) 518; Bahel v. Manning, 112 Mich. 24, 67 Am. St. 381; Judd v. Ballard, 66 Vt. 668; Moebus v. Becker, 46 N. J. L. 41; Amear v. Swartz, 46 Okla. 98; Haines v. Kreeger, 25 Pa. Dist. 62; Hawksley v. Peace, 38 R. I. 544; Harrison v. Allen, 179 Ill.App. 520; Harper v. Holcomb, 146 Wis. 183; Welch v. Durand, 36 Conn. 182; Hawkins v. Watkins, 77 Hun. 360; 4 L. R. A. (N. S.) 119, note; Manning v. Jones, 95 Ark. 359; 11 R.C.L. sec. 44, p. 689; Wright v. Clark, 50 Vt. 130. (a) In the care and custody of firearms the utmost or highest degree of care must be used, to the end that harm may not come to others, since the degree of care required of one having possession and control of a dangerous article is commensurate with its dangerous character. Brittingham v. Stadiem, 151 N.C. 229. (4) It is only injuries from unavoidable accidents that are not actionable. Wright v. Clark, 50 Vt. 130, 28 Am. Rep. 496. (5) If the injured person had no actual knowledge of the danger that threatened him, and if in the exercise of ordinary care under the circumstances he would not have apprehended such danger in time to avoid the consequences of defendant's negligence, he cannot be charged with contributory negligence. 7 Am. & Eng. Ency. Law (2 Ed.) 391, note 2; Langan v. Railway, 72 Mo. 398; 20 R.C.L. sec. 93, p. 107; O'Connor v. Railway, 94 Mo. 150; Crawford v. Stock Yards Co., 215 Mo. 414; 29 Cyc. 514, note 98, and page 515, note 2 and 3, and page 520, note 36; Kimberlin v. Telephone Co., 206 S.W. 433; 8 Thompson on Negligence (White) sec. 40, p. 40. (6) An accident is such an unavoidable casualty as occurs without anybody being to blame for it, that is, without anybody being guilty of negligence in doing or permitting to be done or in omitting to do the particular thing that caused such casualty. Briscoe v. Railway, 222 Mo. 116; Zeis v. Brewing Assn., 205 Mo. 648. (7) Appellant tried the case below on the sole theory that the question and issue was one of negligence or no negligence of defendant; that defendant's liability depended on the question of whether or not he was negligent. Appellant cannot now change his theory and try this case on a theory different from that tried below. Appellant now, for the first time, injects into this case the theory that plaintiff was a trespasser and on that account defendant owed him no duty, and defendant was not liable for ordinary negligence; appellant seeks to try this case on a different theory than presented below. (a) The theory of the trial in the trial court cannot be changed on appeal; the case must be tried on appeal on the same theory as in the trial court. Taylor & Sons v. Railway Co., 213 Mo. 715; Glaser v. Rothschild, 106 Mo.App. 418; St. Louis v. Contracting Co., 210 Mo. 491, 502; Nickel v. Railway Co., 135 Mo.App. 661, 671; Gordon v. Park, 202 Mo. 236, 248; Hof v. Transit Co., 213 Mo. 445, 470; Riggs v. Railway Co., 216 Mo. 304, 318. (b) The appellate court will not pronounce on the soundness of a theory of a case when both parties coincide in putting it forward as one to be followed on the trial of the case. Hume v. Hale, 146 Mo.App. 659. (c) The appellate court will dispose of the case on the theory on which it was tried in the court below. Manzke v. Goldberg, 149 Mo.App. 12. (d) A point not raised in the trial court will not be considered on appeal. Ice Co. v. Kuhlman, 238 Mo. 685; Howell v. Jackson Co., 262 Mo. 414; Kirksville v. Ferguson, 262 Mo. 670; In re Purl's Estate, 147 Mo.App. 117.
RAGLAND, C. Brown C., not sitting; Small, C., absent.
By this action plaintiff seeks to recover damages for personal injuries sustained from the discharge of a fire arm in the hands of one Lewis Marlatt. The suit was instituted against the latter in the Circuit Court for Caldwell County, September 20, 1917. Subsequently, pursuant to written agreement of the parties, the venue was ordered changed and the cause was transferred to the Circuit Court for Livingston County. A trial in that court in January, 1919, resulted in a judgment for plaintiff in the sum of $ 4500. In due course defendant prosecuted an appeal to the Kansas City Court of Appeals. That court in an opinion concurred in by two of the judges held that the judgment of the trial court should be reversed and the cause remanded. The third member of the court was of the opinion that the decision was contrary to "the rule of decision, as to what is necessary to be shown in defense or exoneration from liability for the discharge of fire arms, as announced by the Supreme Court," in certain cases which were cited. The cause was accordingly certified here. Since the transfer of the case the death of the original defendant has occurred, and the cause has been revived in the name of his administrators.
The events giving rise to this controversy occurred August 23 1916, on the farm of Lewis Marlatt, the original defendant. Marlatt was seventy years of age and a little hard of hearing. On the afternoon of that day he had been fishing in some of the streams on or near his premises. He had with him a single-barrel breech-loading shot gun. Foxes had been catching his chickens, and when he started home from the fishing grounds he concluded to go through a certain bottom on his farm, thinking he might get a shot at one of the marauders of his poultry yard. On his way he came across two young men, Whitehead and Franklin, who were engaged in cutting brush for him. Presently all three of them sat down on the ground and engaged in conversation. Just east of them there was a corn field of some four or five acres. The corn had been drilled, the rows running north and south. Between them and the corn there was a barbed-wire fence, consisting of three wires tacked on posts and trees; they were from fifteen to twenty feet from the fence, and the fence was about the same distance from the first row of corn. Whitehead and Franklin were about fifteen feet apart, and Marlatt was between them; Whitehead was on the north, and all three sat facing the west with their backs toward the fence and corn field. There were some scattered trees in their immediate vicinity, and between them and the fence and...
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