Panke v. Shannon

• Decision Date: 14 June 1948
• Docket Number: 40835
• Citation: 212 S.W.2d 792,357 Mo. 1195
• Parties: Peter Panke v. Will F. Shannon, Appellant
• Court: Missouri Supreme Court

212 S.W.2d 792

357 Mo. 1195

Peter Panke v. Will F. Shannon, Appellant

No. 40835

Supreme Court of Missouri

June 14, 1948

Motion for Rehearing or to Transfer to Banc Overruled July 12, 1948.

Appeal from St. Charles Circuit Court; Hon. Theodore Bruere, Judge.

Reversed.

Wm Waye, Jr., Moser, Marsalek, Dearing & Carpenter, W. E. Moser and G. W. Marsalek, for appellant.

There was no evidence that application of the twitch caused the mule to injure plaintiff. The matter was entirely one of speculation, conjecture and guesswork. A verdict based solely on speculation and conjecture cannot be permitted to stand. Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31; State ex rel. Thompson v. Shain, 349 Mo. 27, 159 S.W.2d 582.

Walker Wooldridge and Clement A. Kieffer for respondent.

OPINION

Hyde J.

This case, an action for damages for personal injuries, was transferred by the St. Louis Court of Appeals on dissent of one of the Judges. [Panke v. Shannon, 207 S.W.2d 854.] Plaintiff had judgment for $ 7000.00. We refer to the opinion of the Court of Appeals for a full statement of the evidence and contentions of the parties.

Our view is that there was no substantial evidence of negligence and, therefore, it is not necessary to rule on the other questions raised. The basis of plaintiff's claim is that while plaintiff was removing the shoes from defendant's mule, the tenant on defendant's farm (claimed to have been an employee for the purpose of this operation) was negligent in twisting a twitch too tight on the mule's lips, and that this caused the mule to kick plaintiff. The only evidence of what occurred was plaintiff's own testimony, defendant's tenant Clinton having died before the trial. It showed the following facts. Plaintiff and Clinton went to defendant's barn on a cold day (January 12, 1943) to remove the shoes from two mules. Plaintiff was 53 years old at the time and had been a blacksmith for 25 years. Plaintiff suggested that the mules be brought outside but Clinton said they would stand better inside, so they went inside. The mules were in a stall about 10 x 12 in the southeast corner of the barn. Plaintiff and Clinton entered the stall by a door on the south side.

There was a manger and feedway, which went across the barn north and south. The mules were tied to the manger facing west. Plaintiff placed his equipment, including the twitch, in the manger and Clinton stood at the head of the mules to hold each one while plaintiff removed its shoes. Plaintiff removed three shoes (both front and left rear) from the south mule (the one nearest the door) but he got nervous and got loose from him, when he started to remove the fourth shoe. He decided to let him stand and get over his nervousness so he then took all four shoes off the other mule. Plaintiff then went back to remove the right rear shoe from the first mule. Clinton was holding his head by the halter to try to keep him quiet. Plaintiff picked up the mule's foot, standing with his back to Clinton, and removed the shoe. He said he never thought of taking the other mule out of the stall. The mule showed nervousness but he didn't jerk loose. He was "set on hair tension." Plaintiff said: "I wanted to let him down and pitched the shoe back toward the manger and kept his foot in the left hand and put my right hand on his hip. I was afraid to put the mule on four feet, he would whirl on me. I thought he was all right and turned to walk between the two mules toward the manger and that was when the mule started cutting up. . . . He jumped and made an awful fuss and I either got kicked or pawed and he got me down in the barn." Plaintiff had taken one step and was between the two mules when he was struck. He did not know which mule kicked or pawed him but the one on the south started the trouble.

Plaintiff said the next thing he realized was that he was up in the manger: "Mr. Clinton (who was pawed by the mule) was massaging his leg and the mule was standing there with the twitch on his nose. . . . It was on there very tight." The mule was "wiggling his nose and trying to get the twitch off. . . . It would wiggle loose." Plaintiff said the twitch is part of the regular equipment of a horseshoer and is used to quiet mules or horses if they get unruly. The purpose of twisting a twitch is "to attract the mule's attention to something else." Plaintiff hadn't directed Clinton to use the twitch, and had not told him not to do so but did not know he was using it.

Plaintiff had known these mules for about eighteen months and had worked on them three or four times previously. He had found them to be gentle and said they did not cut up any more than he "would expect out of any mules when you mess with their feet." Plaintiff had two expert witnesses experienced in handling mules and horses, who testified concerning the use of a twitch. One of them said the more the twitch is twisted the more painful it is and if it is too tight the animal generally begins to fight back at you. He said it should be "just tight enough to take his mind off what you are trying to do. You can tell...