Stein v. Rainey

• Decision Date: 30 July 1926
• Docket Number: No. 25520.,25520.
• Citation: 286 S.W. 53
• Parties: STEIN v. RAINEY et al.
• Court: Missouri Supreme Court

286 S.W. 53

STEIN v. RAINEY et al.

No. 25520.

Supreme Court of Missouri, Division No. 1.

July 30, 1926.

Appeal from Circuit Court, Jackson County; James H. Austin, Judge.

Action by Edmund J. Stein, Jr., against Walter L. Rainey and Charles C. Webb. Judgment for plaintiff, and defendants separately appealed. Affirmed.

Strother, Campbell & Strother, Burr N. Mosman, and Toby Fishman, all of Kansas City, for appellant Rainey.

Burr N. Mosman and Toby Fishman, both of Kansas City, for appellant Webb.

Harry G. Kyle and Walter A. Raymond, both of Kansas City, for respondent.

RAGLAND, P. J.

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 every one 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 willfully 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 respiration has been greatly impaired; that both lungs will continue to be in a weakened condition; that a part of them are gone; that he will in the future suffer from his lungs and from his nervous condition; that he is and will be unable to obtain sleep and natural rest; that he has been and will be unable to perform any kind of manual labor; that prior to said accident he was a strong, able-bodied man, capable of earning and did earn $175 per month.

"Plaintiff further states that said shooting was wrongfully and maliciously done, without any provocation upon his part; that he did not know defendant Rainey, had never seen him before in his life, and had never been in said place before, and at said time he was eating a lunch with his wife and two other guests at one table.

"Plaintiff states that defendant Charles C. Webb operating said place unlawfully, and willfully caused, contributed, and assisted in procuring liquor for defendant Walter L. Rainey, which caused his intoxication as hereinbefore stated, which directly contributed to the injuries of plaintiff, in violation of the National Prohibition Act of October 28, 1919 (U. S. Comp. St. Ann. § 10138¼ et seq.), which is now and was at all times hereinbefore mentioned in full force and effect, and also in violation of section 20, tit. 2, of said act (section 10138½j).

"Plaintiff states that defendant Walter L. Rainey wrongfully and willfully shot and injured plaintiff as aforesaid, and that by said wrongful and willful acts of defendants as aforesaid plaintiff received the aforesaid injuries, and was required to and did expend $800 for hospital bills and doctor bills, and that said amount is a reasonable amount; that he will in the future be compelled to expend money for medical attention, the amount of which is unknown to plaintiff at this time; and that, by reason of the aforesaid wrongful and willful acts of defendants, plaintiff received the injuries aforesaid as a direct result thereof, and has been actually damaged in the sum of $25,000.

"Plaintiff further states that said acts of defendants were malicious, entitling him to punitive damages in the sum of $15,000. "Wherefore plaintiff prays judgment against the defendants in the sum of $25,000 actual damages, and for the further sum of $15,000 punitive damages, and for all the costs herein expended."

To the foregoing petition, defendant Webb demurred on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and he was given 10 days in which to further plead, but he filed no further pleading and made no further appearance in the cause for any purpose until after final judgment. Defendant Rainey did not strike at the petition either by motion or demurrer, but answered with a general denial.

When the cause in due course came on for hearing, a trial was entered upon and proceeded with until final judgment; plaintiff and defendant Rainey being the sole participants. Defendant Webb did not appear at the trial, and, though he was at that time in default as to pleading, no interlocutory judgment was entered against him.

The evidence offered by plaintiff on the trial tended to show the following facts: Defendant Webb, on the date hereinafter referred to, was conducting, at a place just outside the corporate limits of Kansas City,. a resort which he called "Edgewood Chicken Dinner Farm." It was housed by a large building, in which there was set apart a space for serving food and drinks and another for dancing. A jazz orchestra of colored musicians furnished the music for dancing; the beverages served included intoxicating liquors. The place was kept open all night, and its attractions drew large crowds. On March 26, 1922, at about 1 o'clock in the morning, plaintiff with a party, which included his wife, appeared there. They took seats at a table near the door where they had entered. Presently they gave an order for chicken sandwiches; the waiter who took the order told them they could not be served for some time, as there were many others ahead of them. While waiting for the sandwiches, they danced from time to time, returning after dancing to the table where they had taken seats upon first coming in. At some time during the interval, the defendant Rainey, who was very much intoxicated, and who was in another part of the room, engaged in some sort of melee, in the course of which he brandished a revolver. He was finally quieted by persons who were near him, and he then left the building. Shortly thereafter Rainey and another suddenly rushed into the room with revolvers in their hands, shouting, "Put your hands up, stick 'em up high." The diners immediately came to their feet with their hands up. And at about that time Rainey and his companion began shooting. The first two bullets from Rainey's gun struck plaintiff, and he fell limp and unconscious across the table. Webb, who at all times kept himself stationed near the cash register, came to where plaintiff lay, and, after a casual inspection, ordered his waiters to carry the body outside. This they did, depositing plaintiff on the ground. Defendant Webb then got into his automobile and made a hasty departure from the scene. Shortly afterward plaintiff was conveyed to a hospital by his wife and their companions of the evening (or morning), where for a time he hovered between life and death. The character and extent of the injuries he suffered are accurately portrayed in the petition, with one exception. It is there alleged that he will not be able in the future to perform any kind of manual labor; the proof was that he is permanently incapacitated from doing anything which requires any considerable exertion. At the time of his injury, plaintiff was 30 years of age, strong and robust; he was a glazier by trade. The evidence is silent as to what he was earning per month.

Prior to the occurrence just narrated, there had, been no acquaintance between plaintiff and Rainey; there had been no contact of any kind between them; nothing had ever occurred to arouse on the part of either hostility toward the other. Rainey was simply drunk and giving rein to a wild impulse to "shoot up" the place.

The defendant, testifying in his own behalf, admitted that he was at Webb's place the first part of the night on which plaintiff was shot, but denied that he was intoxicated or had a pistol at any time while there, denied that he shot plaintiff, and denied that he was present when plaintiff was shot.

During the course of the trial, plaintiff called as a witness Perce Bollinger, a prohibition enforcement officer, who testified that he visited Webb's place twelve or fifteen times during the months of January and February, 1922, for the purpose of securing evidence; that on those occasions, or some of them, he bought and paid for whisky which was served at a table; that he afterwards raided the place and found a quantity of intoxicating liquor; and that, following the raid, proceedings were commenced in the federal District Court which resulted in a decree under which the building was padlocked. Plaintiff also called one Vinick, a deputy clerk of the United States District Court for the Western Division of the Western District of Missouri, who produced and read in evidence the records of that court in the case of the United States v. Charles C. Webb et al., a proceeding in equity. The bill alleged that defendant Webb and others, during a period of time beginnig prior to January 1, 1922, and continuing up to and including the 15th day of April, 1922, had kept for sale, sold, and bartered intoxicating liquors on said premises (the Edgewood Chicken Dinner Farm) for beverage purposes, in violation of the National Prohibition Act. The decree recited that the defendant Webb confessed that the allegations of the bill were true. To all of this evidence defendant Rainey vigorously objected, on the ground that it was irrelevant and incompetent and would tend to prejudice the jury against him. In connection with the making of these...