Stein v. Rainey

• Citation: 286 S.W. 53,315 Mo. 535
• Decision Date: 30 July 1926
• Docket Number: 25520
• Parties: Edmund J. Stein v. Walter L. Rainey and Charles G. Webb, Appellants
• Court: United States State Supreme Court of Missouri

286 S.W. 53

315 Mo. 535

Edmund J. Stein v. Walter L. Rainey and Charles G. Webb, Appellants

No. 25520

Supreme Court of Missouri

July 30, 1926

Appeal from Jackson Circuit Court; Hon. James H. Austin Judge.

Affirmed.

Strother Campbell & Strother, Burr N. Mosman and Toby Fish man for appellant Walter L. Rainey.

(1) The court erred in the admission of incompetent, irrelevant and immaterial evidence offered on behalf of plaintiff over the objection of defendant Rainey. Dolan v. McLaughlin, 64 N.W. 1078; Blatz v. Rohrback, 116 N.Y. 450; Richards v. Moore, 62 Vt. 217; Helleker v Farr, 149 Mich. 444; Welch v. Jugenheimer, 56 Iowa 11; Applegate v. Winebrenner, 67 Iowa 235; Loveland v. Briggs, 32 Hun (N. Y.) 477; Wolfe v. Johnson, 152 Ill. 280. (2) The court erred in the giving of Instruction 1 on behalf of plaintiff. Wolfe v. Supreme Lodge, 160 Mo. 675. (3) The court erred in the giving of Instruction 4 on behalf of plaintiff as to defendant Rainey as said instruction is inconsistent with plaintiff's Instruction 1. (4) Plaintiff's Instruction 4 was erroneous in that it permitted a joint recovery of damages against defendants without requiring a finding that defendants acted in concert and co-operated with each other in inflicting the injuries upon plaintiff. Thomas v. Werremeyer, 34 Mo.App. 665; Schafer v. Ostmann, 148 Mo.App. 644. (5) The court erred in overruling defendant Rainey's motion in arrest of judgment. There can be no joint judgment under the pleadings and the evidence in this case. Thomas v. Werremeyer, 34 Mo.App. 655; Brouster v. Fox, 117 Mo.App. 711; Barton v. Barton, 119 Mo.App. 531; Schafer v. Ostmann, 148 Mo.App. 644; State v. Hickam, 95 Mo. 322; Dickson v. Yates, 194 Iowa 910. (6) The verdict is excessive. Pley v. Lovette, 167 Ill.App. 494; Cumins v. Crawford, 83 Ill. 312; Roenbeck v. Railroad, 108 N.Y.S. 80; Railroad v. Brown, 78 Tex. 397; Van Cleve v. Railroad, 137 Mo.App. 332; Foster v. Railroad, 115 Mo. 165; Williams v. Spokane, 75 Wash. 237; Hayward v. Railroad, 174 Ill.App. 408. (7) The judgment in this case is a joint judgment and defendants are entitled to contribution. Any error as to either defendant inures to the benefit of both. Mulderig v. Railroad, 116 Mo.App. 655; Miller v. United Rys. Co., 155 Mo.App. 528; Knox v. Railway, 199 Mo.App. 64.

Burr N. Mosman and Toby Fishman for appellant Charles C. Webb.

(1) The demurrer to the petition should have been sustained. Christy v. Butcher, 153 Mo.App. 397; Waechter v. Railroad, 113 Mo.App. 270; Gabriel v. Railway, 130 Mo.App. 654; Raming v. Transit Co., 157 Mo. 507; Gaedis v. Railroad, 161 Mo.App. 225; O'Brien v. Transit Co., 212 Mo. 59; Peterie v. Railroad, 177 Mo.App. 359; Sharp v. Kurth, 245 S.W. 636; Evans v. Ill. Central Railroad Co., 289 Mo. 493. (2) The motion in arrest of judgment should have been sustained. There can be no joint judgment under the pleadings and the evidence in this case. Thomas v. Werremeyer, 34 Mo.App. 665; Brouster v. Fox, 117 Mo.App. 71; Barton v. Barton, 119 Mo.App. 531; Schafer v. Ostmann, 148 Mo.App. 644; State v. Hickam, 95 Mo. 322; Dickson v. Yates, 194 Iowa 910. (3) Punitive damages are not recoverable as against defendant Webb, under the pleadings in this case. There is no right of action for damages for injuries growing out of the sale of intoxicating liquors at common law. 23 Cyc. 309; Thornton & Woolen on Intoxicating Liquors, sec. 1029, 1032A; Black on Intoxicating Liquors, sec. 281; Joyce on Intoxicating Liquors, sec. 421; Meade v. Stratton, 87 N.Y. 403, 41 Am. Rep. 386; Schulte v. Aden, 210 Ill. 357; Cruse v. Aden, 127 Ill. 231; Quinlan v. Welch, 141 N.Y. 158; Paulson v. Langness, 16 S.D. 471; Bacon v. Jacobs, 63 Hun (N. Y.) 51, 17 N.Y.S. 323. (4) There was a total failure of proof to sustain the allegations of the petition. (a) The only cause of action alleged in the petition as against defendant Webb is a cause of action under the Volstead Act. There is no such right of action at common law. Authorities under Point 3. (b) The evidence introduced by plaintiff to sustain his cause of action against defendant Webb was incompetent, irrelevant, immaterial and of no probative force. Dolan v. McLaughlin, 64 N.W. 1078; Blatz v. Rohrback, 116 N.Y. 450; Richards v. Moore, 62 Vt. 217; Helleker v. Farr, 149 Mich. 444; Welch v. Jugenheimer, 56 Iowa 11; Applegate v. Winebrenner, 67 Iowa 235; Loveland v. Briggs, 32 Hun (N. Y.) 477; Wolfe v. Johnson, 152 Ill. 280. Even though no objection was made to the introduction of this evidence the court will not consider the same, in determining whether or not a case was made for the jury, where the evidence has no probative force. Kane v. Railway, 251 Mo. 13; Davidson v. Railway, 207 S.W. 277; Nodaway County v. Williams, 199 S.W. 224; State v. Johnson, 225 S.W. 961; Moran v. Brown, 27 Mo.App. 491; Pagei v. Rose Mfg. Co., 259 S.W. 966; Southern Surety Co. v. Nalla Co., 242 S.W. 201. (c) The provisions of Sec. 1256, R. S. 1919, cannot be invoked by plaintiff to make out a case against defendant Webb, as he waived any right he may have had to the benefit of the same by trying his case on the merits as to defendant Webb. Roden v. Helm, 192 Mo. 71; Debuhr v. Thompson, 134 Mo.App. 21; Bank of Haywards v. Kenyon, 163 P. 869; Black on Judgments, sec. 86, p. 126; 31 Cyc. 733-735; 23 Cyc. 739; Munroe v. Dougherty, 196 Mo.App. 124; Feder v. Greenberg, 191 Ill.App. 144; Lopaz v. Hines, 254 S.W. 37; Madison v. Oil Co., 154 Cal. 768; Blalack v. Blacksher, 11 Ala.App. 545; Stringer v. Mfg. Co., 177 Mo.App. 234; Stevens v. Fitzpatrick, 218 Mo. 708; Brewster v. Land Co., 247 Mo. 223; Shull v. Boyd, 251 Mo. 452; McMurray v. McMurray, 258 Mo. 405. (d) Plaintiff had a trial of the issues as to defendant Webb. Schwoerer v. Christophel, 64 Mo.App. 81; Crossland v. Admire, 118 Mo. 87; Sherer v. Akers, 74 Mo.App. 217; Breed v. Hobart, 187 Mo. 140. (5) The verdict is excessive. Pley v. Lovette, 167 Ill.App. 494; Cumins v. Crawford, 83 Ill. 312; Roenbeck v. Railroad, 108 N.Y.S. 80; Van Cleve v. Railroad, 137 Mo.App. 332; Foster v. Railroad, 115 Mo. 165; Williams v. Spokane, 75 Wash. 237.

Harry G. Kyle and Walter A. Raymond for respondent.

(1) Plaintiff's petition states a cause of action. Miller v. Harpster, 273 Mo. 605; Boyd v. Transit Co., 108 Mo.App. 303; Secs. 1226, 1227, 1230, R. S. 1919; Canada v. Daniel, 175 Mo.App. 55. (2) Any objection to misjoinder of causes of action was waived. Norton v. Reed, 253 Mo. 236; Dorrance v. Dorrance, 257 Mo. 317; Ford v. Dickinson, 280 Mo. 206; Secs. 1226, 1227, 1230, R. S. 1919. (3) The demurrer to the petition was properly overruled. McNamara v. Transit Co., 182 Mo. 676; Reel v. Consolidated Inv. Co., 236 S.W. 43; McKenzie v. Randolph, 238 S.W. 828. (4) A joint judgment against both appellants was proper. (a) Appellants waived any objection to a joint judgment. Secs. 1226, 1230, R. S. 1919. (b) Proof of a conspiracy is not necessary. Reynolds v. Street Railways, 180 Mo.App. 138; Shafir v. Sieben, 233 S.W. 419; Paul Boynton Co. v. Morris Shute Lbr. Co., 82 F. 440. (5) Respondent was properly awarded punitive damages. 41 U.S. Stat. 313, c. 85, tit. p. 20; White v. Railroad Co., 101 S.W. 14; Berry v. Milling Co., 240 S.W. 829; Ford v. Dowell, 243 S.W. 366. (6) The judgment rendered was a default judgment. (a) There was no trial of the issues. Crossland v. Admire, 118 Mo. 87; Breed v. Hobart, 187 Mo. 140. (b) The form of the judgment entry is not material. Sec. 1524, R. S. 1919; Mumford v. Keet, 37 Mo. 144; Lane v. Dowd, 172 Mo. 167; Sextion v. Anderson Electric Co., 234 S.W. 358. (c) The right to a default judgment was not waived. School Dist. v. Shuck, 49 Col. 526, 113 P. 511; Phillips v. Postage Transit Co., 137 Wis. 189; Burnes v. Burnes, 61 Mo.App. 612. (7) Appellant Webb is not entitled to take advantage of any error as to defendant Rainey. Mitchell v. Brown, 190 S.W. 354; Adair v. Terminal Ry. Co., 220 S.W. 920; Costello v. Kansas City, 232 S.W. 165; Caldwell v. Payne, 246 S.W. 312. (8) The verdict is supported by the evidence. Jetter v. Terminal Ry. Co., 193 S.W. 956; Surbeck v. Surbeck, 208 S.W. 645; Nash v. Gas. Co., 234 S.W. 360. (9) The verdict is no more than reasonable compensation for respondent's injuries and damages. Evans v. General Explosive Co., 239 S.W. 487; Hurst v. Ry. Co., 219 S.W. 241; Custer v. Kroeger, 241 S.W. 241; Hunter v. Railways Co., 248 S.W. 998; Hobbs v. Boatright, 93 S.W. 934.

Ragland, P. J. All concur, except Graves, J. , absent.

OPINION

RAGLAND

As to the nature of this action we will let the petition speak for itself. The prefatory part of that pleading is taken up with descriptions of the resort owned by defendant Webb, known as the "Edgewood Chicken Dinner Farm," and of the events alleged to have occurred there prior to the one on which the action is based -- all of which may be regarded as matters of inducement, or else as pure surplusage. The remainder of the pleading is as follows:

"That upon entering said building at said time, the said Walter L Rainey commanded everyone in said room to stand up and hold their hands up; that said Walter L. Rainey approached near the plaintiff from behind while plaintiff was standing up with his hands up, and wrongfully and wilfully shot plaintiff twice, the first shot striking plaintiff's left arm. The bullet of the second shot, a 44-caliber, entered on the left side of his back and passed through the left lung near the heart, struck a rib in front and glanced to the right passing through the right side of his back where it was found and removed by a surgical operation; that plaintiff was immediately rendered unconscious; that by reason of said injury plaintiff has been permanently disabled; that both lungs have been severely and permanently injured; that he sustained a severe nervous shock; that his...