State ex rel. Mather v. Carnes

• Citation: 551 S.W.2d 272
• Decision Date: 02 May 1977
• Docket Number: Nos. KCD,s. KCD
• Parties: STATE of Missouri ex rel. Richard MATHER, Plaintiff-Appellant, v. William Kenneth CARNES and Maryland Casualty Company, Defendants-Respondents, and Grain Valley Airport Corporation, Defendant-Respondent, and J. Woody and Woody's Flying Service, Defendants-Respondents, and Rufus Thrall, Third-Party Defendant-Respondent. 27839, KCD 27860.
• Court: Court of Appeal of Missouri (US)

Page 272

551 S.W.2d 272

STATE of Missouri ex rel. Richard MATHER, Plaintiff-Appellant, v. William Kenneth CARNES and Maryland Casualty Company Defendants-Respondents and Grain Valley Airport Corporation, Defendant-Respondent and J. Woody and Woody's Flying Service, Defendants-Respondents and Rufus Thrall, Third-Party Defendant-Respondent.

Nos. KCD 27839, KCD 27860.

Missouri Court of Appeals, Kansas City District.

May 2, 1977.

H. George Lafferty, Jr., Kansas City, Lafferty, Horowitz & Shurin, Kansas City, of counsel, for plaintiff-appellant and respondent Mather.

Joe M. Williams, Associate County Counselor, Kansas City, for defendants and respondents William Kenneth Carnes and Maryland Cas. Co.

J. Worthen DeYoung, Linde, Thomson, Fairchild, Langworthy & Kohn, Kansas City, for respondents J. Woody and Woody's Flying Service.

Before SHANGLER, P. J., and WELBORN and HIGGINS, Special Judges.

SHANGLER, Presiding Judge.

This appeal comes from a jury verdict for plaintiff Mather on his claim for damages against defendant William K. Carnes, Sheriff of Jackson County, and surety Maryland Casualty Company, for failure to attach an aircraft under process ancillary to commencement of an action against one Thrall for the partition of a Beechcraft airplane.

The underlying partition suit was between Mather and Thrall (a nonresident) concerning the joint ownership of the craft then tied down on an apron at the Grain Valley Airport leased to one Woody and by him to Mather. A deputy sheriff (Shuster) undertook to attach the airplane under the process sued out by Mather, but thereafter Thrall unfettered the craft and removed it from the jurisdiction.

The suit went to trial on an amended petition which pleaded three counts: Count I was against Sheriff Carnes and surety Maryland Casualty and alleged the sheriff had attached the airplane, but negligently failed to keep it in his custody; Count II alleged that the Grain Valley Airport and Woody wrongfully surrendered the aircraft to Thrall despite full knowledge of the attachment levy and the promise by Woody to deliver up the property upon the request of the sheriff; Count III proceeded on the theory that the sheriff negligently refused to take reasonable steps to retake the airplane. The defendant Sheriff Carnes brought a third-party petition against Woody for indemnity over for any liability to the plaintiff Mather from the release of the aircraft by Woody to Thrall. Woody (both in the personal and corporate capacities by which he had been named in the litigation) in turn brought a third-party action against Thrall for any liability adjudged against him to Mather or Sheriff Carnes.

At the close of the evidence for plaintiff Mather, a verdict was directed for defendant Woody, and at the close of all the evidence, the third-party claim of the sheriff was also directed in favor of Woody. These determinations effectively removed Thrall from the litigation. The single issue which ultimately went to the jury was not a pleaded theory, but on an amendment to conform with the proof: that the defendant Sheriff Carnes (and his surety) had negligently failed to attach the aircraft. The defendant Sheriff submitted the issue of the contributory negligence of plaintiff Mather in particulars. The jury returned a verdict of $17,678.93 for the plaintiff against Carnes and Maryland Casualty, the only defendants to remain.

After the trial defendants moved for judgment notwithstanding the verdict in accordance with their motion for directed verdict, or in the alternative for a new trial, as authorized by Rule 72.01(b). The trial court did not rule the motion for judgment, but granted a new trial on grounds stated in paragraphs 22(c), 24(2) and 25 of the motion for judgment incorporated by reference into the motion for new trial. In reprise, the grounds of these paragraphs are: plaintiff Mather failed to prove substantial damages; the attachment and levy were validly made as a matter of law, or abandoned by plaintiff; and that plaintiff Mather was contributorily negligent as a matter of law. The parties cross-appealed: plaintiff Mather from the grant of a new trial, and defendant Carnes and Maryland Casualty from the failure of the court to enter judgment in accordance with their after-trial motion. For our purposes, we treat the failure to rule the alternative motion for judgment as a final order of denial of that request for relief. See, Newell v. Peters, 406 S.W.2d 814, 819(6) (Mo.App.1966).

At the outset, we place each litigant in a proper posture. The plaintiff Mather lost a favorable judgment by the grant of a new trial to the defendants and so was aggrieved and entitled to appeal that order of the trial court. The effect of the grant of new trial to defendants Carnes and Maryland Casualty, however, was to remove an adverse judgment from against them. The denial of the motion for judgment in such case, therefore, neither constitutes a final judgment within § 512.020, RSMo 1969, nor adversely affects or aggrieves them to give standing for appeal. Powell v. Watson, 516 S.W.2d 51, 52(1-3) (Mo.App.1974). Accordingly, we dismiss the appeal of defendants Carnes and Maryland Casualty.

The dismissal does not foreclose challenge to submissibility of the case for plaintiff, however, where preserved properly by after-trial motion (Schmittzehe v. City The grant of new trial rests solely on the ground that as a matter of law: plaintiff failed to prove damages; that an attachment was shown (or later abandoned by Mather); that Mather was contributorily negligent. These rulings do not involve exercise of judicial discretion but only the applications of legal principles. We determine, therefore, not the propriety of a discretion, but only whether the judicial order rests on a valid or erroneous view of the law. Highfill v. Brown, 340 S.W.2d 656, 664(11) (Mo. banc 1960). The order for new trial postulates four grounds, that as a matter of law the evidence proved: (1) a valid attachment (2) abandonment of the attachment by Mather (3) no damages and (4) contributory negligence. The abandonment ground is premised on the two disparate reasons of PP 24(2) and 25 of the motion for judgment, and is ambivalent. The first reason (P 24(2)) holds that the attachment was abandoned before perfection by the failure of plaintiff Mather to propound interrogatories to a garnishee. The second reason (P 25) holds that the attachment was abandoned after perfection by the election of Mather to pursue other remedies to satisfy his judgment against Thrall. The first reason is logically cognate to the theory of recovery submitted for if the plaintiff abandoned the attachment the sheriff cannot be held for that failure and so requires our decision. The second reason, however, relates to conduct of the plaintiff after the attachment was perfected and so is altogether irrelevant to the submission for if the sheriff validly attached, then the plaintiff fails on his only theory of recovery that the sheriff failed to attach. Our review proceeds on this definition of the issue.

of Cape Girardeau, 327 S.W.2d 918, 920(1) (Mo.1959)) and where the record shows plaintiff cannot recover under the law and evidence, we will direct entry of judgment for defendant and spare another trial. Bailey v. Interstate Airmotive, 358 Mo. 1121, 219 S.W.2d 333, 336(3) (1949).

I THE FACTUAL STATEMENT

The plaintiff Mather commenced a suit against nonresident Thrall to partition a Beechcraft airplane owned by them jointly. In order to subject the property to the jurisdiction of a Missouri court and to induce the appearance of Thrall, Mather flew the craft to the Grain Valley Airport in Jackson County, and ordered process of attachment to issue. Mather secured the plane with two standard locks on the door and ignition switch and another on the controls. He leased tie-down space for the plane for $15 per month from Woody, the manager, and retained the keys to all three of the locks. Thrall had separate keys to the door and ignition locks; Woody had no keys to the plane. Woody leased this area, the gas business, shop and office from the Grain Valley Airport Corporation. As he conceived it, Woody had no authority to keep the public out of the tie-down area. Those who leased tie-down space did not need permission to remove the plane or return it. Mather asked Woody to remove the batteries from the aircraft, but Woody was not certain he had done so. Mather made no other arrangements with Woody or anyone else at the airport about the plane nor did he tell Woody that Thrall was not to fly the craft away.

An affidavit of attachment was filed with the circuit court as to a described aircraft owned by nonresident Thrall. A letter of direction from attorney Horowitz for plaintiff Mather accompanied the affidavit with instructions that the attachment in aid of service issue for levy upon the Beechcraft airplane located at the Grain Valley Airport. The writ duly issued and, with a receipt form for the property to be taken, was delivered to Deputy Sheriff Shuster who was charged with the execution of such process. The testimony of the transaction then becomes shrouded in contradictions.

It was the testimony of Shuster that, as a matter of course in such matters, he telephoned the attorney to learn of any special directions for the attachment of the airplane, and specifically, whether the craft Conflict also marks the testimony by Shuster and Woody as to what passed between them at the airport. Shuster testified that when he arrived there, he handed Woody the only person in the vicinity a copy of the attachment and summons with instructions not to release the airplane without permission from the office of the sheriff. He never touched the plane, but was close enough to identify the craft by its numbers. He then had Woody sign a receipt in his capacity as airport manager with the explanation: "(T)hat's to keep the plane here until you get a release from...