Schoening v. Claus
| Decision Date | 09 June 1952 |
| Docket Number | No. 42912,No. 2,42912,2 |
| Citation | 249 S.W.2d 361,363 Mo. 119 |
| Parties | SCHOENING v. CLAUS |
| Court | Missouri Supreme Court |
Orlando A. Mundwiller, Hermann, John P. Peters, Linn, for appellant.
Wm. H. Wessel, Hermann, J. H. Mosby, Linn, Joseph T. Tate, Owensville, for respondent.
WESTHUES, Commissioner.
Plaintiff Louis Schoening filed this suit in the Circuit Court of Gasconade County, Missouri, wherein he asked damages in the sum of $25,000 for personal injuries sustained as a result of gunshot wounds which it was alleged he received through the negligence of the defendant Erwin Claus. A change of venue was granted and the case was tried in Osage County, Missouri. A jury returned a verdict for the defendant. From the judgment entered, plaintiff appealed.
The evidence showed the following: On the morning of August 8, 1943, the defendant and his brother, Elmer, in company with Clarence Liebach went to the home of plaintiff Schoening near Swiss in Gasconade County for the purpose of hunting squirrels. The four men and plaintiff's daughter drove to a point east of Highway No. 19 along a road referred to as the Stony Hill Road where they took to the woods to hunt. After hunting for about three hours and at about two o'clock, they were walking toward their car intending to start home. As they were walking. along, the dogs began barking at a tree. All the parties went to the tree where it was discovered there were at least two squirrel holes in the tree. Plaintiff climbed the tree and with a stick prodded a squirrel from one of the holes. As the squirrel ran along a limb, defendant Erwin and his brother each shot at the squirrel. They were using 12-gauge shotguns and either No. 4 or 6 shot. Some of the shot struck plaintiff about the face and head resulting in the loss of his left eye and in other serious injuries. Plaintiff was taken to a doctor at Stony Hill for temporary treatment and then to a hospital at Jefferson City, Missouri, where he was treated by Dr. Stanley P. Howard. Plaintiff was in the hospital for fifteen days and then returned to his home. The Claus brothers and Clarence Liebach testified that they paid plaintiff's hospital and medical bills, each paying a third of the amount.
The evidence shows that some time thereafter plaintiff approached the defendant about paying for the injuries plaintiff received. Defendant denied liability and this suit was filed August 5, 1948.
Plaintiff testified that when the hunters reached the tree where the dogs were barking, he was asked by the others to climb the tree to poke the squirrel out of a hole. He testified that he told the men he did not like to do that and for them to be careful and not to shoot while he (plaintiff) was in the tree.
Plaintiff's daughter testified her father admonished the men not to shoot while he was in the tree; that when the shots were fired, Liebach said to Erwin, the defendant, 'I figured you would shoot too low.'; that she was standing close to Erwin and saw him fire his gun. It was admitted by all that plaintiff immediately came down and that he was bleeding about the face and head. Liebach then went to get the car to take plaintiff to a doctor. While the others were waiting, plaintiff's daughter treated plaintiff's wounds by washing his face and head. She testified that while she was doing this, Erwin, said to plaintiff, 'I am sorry that I shot you.' When Liebach returned with the car, they took plaintiff to a Dr. Engelbrecht at Stony Hill. A witness, Sam Wiegand, testified he was at Stony Hill when the parties arrived with plaintiff. As to what occurred and about what was said, Wiegand's testimony was as follows:
'A. Well, a car ran up and parked and they let him out of the car, and when they took him out of the car I seen he was just a regular mass of blood. I says, 'What on earth is the matter with Louie Schoening?' And they said, 'Erwin Claus shot him'. I says, 'How did that happen?' Well, they said, 'They treed a squirrel in a hole in a hollow tree, and Schoening went up to run the squirrel out, and when the squirrel jumped out, Claus shot and hit him'.
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Plaintiff testified that when his daughter was washing his face, the defendant said, 'Louie, I am sorry I shot you.'
The defendant testified in his own behalf. Defendant's brother and Clarence Liebach also testified for the defendant. The defendant denied he made any statement to plaintiff that he was sorry he shot him and that he did not see witness Wiegand at Stony Hill. Elmer Claus and Liebach testified that they did not hear defendant make any admission that he shot plaintiff and these witnesses also stated they did not see Wiegand at Stony Hill. According to their evidence concerning the positions they occupied while under the tree waiting for the squirrel, it would seem that it was the shot from Elmer's gun that struck plaintiff. These three men also gave a different account of what occurred immediately before the shooting. According to their evidence, it was plaintiff who insisted on going to the tree where the dogs were and that plaintiff volunteered to climb the tree; that he gave no warning about not shooting while he was in the tree. These witnesses testified that they thought they had enough squirrels and wanted to go home but that plaintiff insisted on going to the tree. According to the record, the number of squirrels that had been shot increased as the trial of the case progressed. At page 65 of the record, the number was five; at page 115, it was about 'eight, ten or eleven'; at page 158, it was 'elven or more.' For the sake of the curious, we add that the squirrel in the tree, where plaintiff was injured, was added to the bag. The Claus brothers evidently changed their minds about having enough squirrels because they shot this last one even though human life was endangered.
Plaintiff briefed only two points: First, error was assigned to the giving of an instruction on accident. It is plaintiff's contention that the evidence did not justify such an instruction. The instruction complained of reads as follows: 'The court instructs the jury that, if you believe from the evidence that the injury to the plaintiff was the result of an accident which could not have been foreseen by an ordinarily and reasonable person, then your verdict should be in favor of defendant.'
Plaintiff's contention must be sustained. The record contains no substantial evidence justifying a finding that plaintiff's injuries were the result of an accident as that term is understood in the law of negligence. In 1 C.J.S., Accident, Negligence, page 438, we read the following: 'Considering an accident as an occurrence to which human fault does not contribute, the term 'accident' has been defined variously as a casualty which could not be prevented by ordinary care and diligence; an event happening...
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Zafft v. Eli Lilly & Co.
...80, 199 P.2d 1 (1948). This theory, best illustrated by Summers, supra, has not achieved full acceptance in Missouri. Schoening v. Claus, 363 Mo. 119, 249 S.W.2d 361 (1952). In Summers, two hunters negligently fired in the direction of the plaintiff who was unable to determine which of the ......
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Hagen v. Celotex Corp.
...we declined to follow decisions of other states that seem to have relaxed the traditional causation standards. See Schoening v. Claus, 363 Mo. 119, 249 S.W.2d 361 (1952). The plaintiffs' cited cases do not support a contrary The plaintiffs first rely on Elam v. Alcolac, Inc., 765 S.W.2d 42,......
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