Turpin v. Shoemaker, 52768

• Decision Date: 13 May 1968
• Docket Number: No. 2,No. 52768,52768,2
• Citation: 427 S.W.2d 485
• Parties: Lucy TURPIN, Appellant, v. Lloyd SHOEMAKER, Respondent
• Court: Missouri Supreme Court

Page 485

427 S.W.2d 485

Lucy TURPIN, Appellant, v. Lloyd SHOEMAKER, Respondent.

No. 52768.

Supreme Court of Missouri, Division No. 2.

May 13, 1968.

David H. Clark, Kansas City, William G. Johnson, Versailles, for appellant; Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, of counsel.

William H. Sanders, Dean F. Arnold, Thomas I. Osborne, Kansas City, Thomas G. Woolsey, David A. Yarger, Versailles, for respondent; Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, of counsel.

EAGER, Judge.

This opinion is written upon reassignment. The suit is one by the widow of Loyd Turpin to recover damages for his wrongful death. The verdict and judgment were for the defendant. The death was caused by the discharge of a revolver held in the hand of the defendant, but it is merely contended that the shooting was negligent, and not intentional. Defendant pleaded and relied upon contributory negligence and upon the doctrine of assumption of risk. The Court submitted instructions on both. The suit was filed in Morgan County but was sent to Moniteau County on change of venue. The deceased was 43 years old and was generally engaged in different forms of construction work. The defendant operated a dry cleaning business in Versailles.

Defendant and his wife had invited the Turpins and Mr. and Mrs. Lawson Nichols to their home on the evening of September 25, 1965; they had all been friends for several years and, to some extent at least, the men had hunted and fished together. The home was in the country near Versailles; its size and arrangement are not accurately described. The Turpins arrived at about 8:00 o'clock; Shoemaker was finishing his dinner. Thereafter the four persons played a card game called 'Tripoli' During the course of the evening each of the six had two or three bourbon whiskey highballs; just how many, specifically, by each one is not shown. After the events related all six played 'Tripoli' in the kitchen until about 10:00 or 10:30, when the Nichols child became fussy and they decided to leave. As the party broke up, the three men again discussed guns and someone proposed a 'quick-draw' contest between Turpin and Shoemaker, the purpose being to see which one could draw and 'dry-fire' his gun first. Nichols handed Turpin his English revolver (which Turpin had previously owned) and Turpin broke it open and looked at it to make sure that it was not loaded. He did not look at defendant's gun or inquire about it. Defendant strapped on his belt, holster and gun without rechecking the gun, and Turpin stuck his gun under his belt with the grip (or handle) protruding. Someone counted 1--2--3 and upon the count of 3 each would, and did, draw his gun and pretend to shoot, clicking the hammer on the firing pin. The evidence describes in some detail how defendant fired his single action revolver by 'fanning' the hammer in western style, but we deem that unnecessary to our discussion. The men faced each other at about six feet; the 'clicks' were audible. No one was certain who did the counting; Mrs. Turpin thought it possible that she had counted once; Nichols counted once or twice; plaintiff did not claim that she had protested the performance, but neither did she have any part in promoting it. It is not clear just how many times the draw was performed The only questions raised on this appeal involve the defenses of assumption of risk and contributory negligence. There can be no doubt whatever that plaintiff made a submissible case of negligence against the defendant. Plaintiff's counsel have violated our Rule 83.05, V.A.M.R., by failing to set out the controverted instructions in their brief. We note this oversight as a caution to the Bar. They did assign every possible objection to defendant's instructions in their thirteen-page motion for a new trial, so we are not concerned with any waived objections. Defendant moved for a directed verdict both at the close of plaintiff's case and at the conclusion of all the evidence. Both motions were overruled. His counsel contend here that the latter motion was erroneously overruled because the suggested defenses were shown as a matter of law.

in the living room or 'TV' room (adjoining the kitchen) until the Nichols couple arrived at about 9:00 o'clock, with their small child. All three men were, it seems, somewhat interested in revolvers and pistols (there is a distinction). Nichols brought with him an English 'Webley' revolver which Turpin had previously traded to him for a motor; when Nichols arrived the card game ceased temporarily and, for some reason, he brought out the revolver; he was more or less kidded by someone about it as being a 'Limey' gun. There is some indication that he may have contemplated trading it again. Thus encouraged, Shoemaker got his own revolver and its holster and belt. Some description of the gun is necessary. It is a .22 caliber Ruger target pistol, 6 shot, single action, and possibly of a foreign make; the cylinder does not release and break out to the left as in the ordinary revolver, and the only way to load, unload or inspect the chambers which hold the shells (aside from taking the gun apart) is to pull out to the right and downward a small, curved metal block, described as a 'half moon,' so that one chamber is then fully exposed and the bare edge of another. It is thus obvious that it is much more difficult to load, unload or inspect this gun than the ordinary revolver. The cylinder can only be rotated when the hammer is on 'half-cock.' There was some evidence that when defendant produced that gun he stood in a hallway at the foot of the stairs or 'in the doorway' (the gun then being fully loaded with magnum 23's), placed it in readiness to rotate the partially open cylinder, held it up, and did rotate the cylinder from one chamber to the next, letting the shells fall on the floor; also, that he then held it downward, rotated the cylinder some more and supposedly checked it again. However, he could only see clearly one chamber at a time. He, Shoemaker, then picked up the shells and put them in his pocket, but did not count them; he hung the gun and holster on the post at the bottom of the stairway. Defendant testified to this checking of the gun, and Mrs. Nichols (for the plaintiff) partially verified it. The evidence is not clear as to where Turpin was during this proceeding, and there is no evidence definitely establishing that he saw it. Shoemaker testified that at the time 'the others' were in the room where they had been playing cards and were 'getting up' from the table; by fair inference the 'others' would include Turpin, the deceased. Defendant testified that, when he hung up his gun, he asked if 'they' wanted to look at it formed before the fatal shot, probably either two or three times. Finally, as the Nichols were at the door to leave, and apparently without an independent count, the contestants drew and fired again and a bullet was discharged from Shoemaker's gun, severing an artery in Turpin's abdomen. An ambulance and a doctor were procured but he died before reaching the hospital. Shoemaker had previously participated in such contests; it was not shown that Turpin had.

Plaintiff's verdict-directing Instruction No. 2, aside from its formal parts, hypothesized--'Second: That defendant failed to adequately inspect his Ruger revolver to ascertain it was unloaded before pointing and firing said revolver at plaintiff's decedent, Loyd Turpin, and Third: That defendant was thereby negligent,' concluding that plaintiff should recover 'unless you believe that plaintiff is not entitled to recover by reason of Instructions Numbers 4, 5 and 6.' Thus the sole submission of negligence was upon a failure to adequately inspect. The two instructions of defendant in which we are particularly interested are No. 4 and No. 6. We set them out in full except that we eliminate one typographical error No. 6.

No. 4: 'Your verdict must be for defendant (even if you believe Loyd Turpin was not himself negligent) if you believe: First, that Loyd Turpin knew and appreciated the danger of firearms. Second, that Loyd Turpin voluntarily exposed himself to a known and appreciated danger of a quick draw contest in which defendant would draw his revolver, aim it at Loyd Turpin, and discharge the hammer against the firing pin.'

No. 6: 'Your verdict must be for the Defendant, whether or not Defendant was negligent if you believe: First, if Loyd Turpin either: Voluntarily engaged as a participant in and engaged in a 'quick draw' contest with real firearms; or Failed to inspect the revolver used by Defendant in said 'quick draw' contest to see if it was loaded; and Second, Loyd Turpin's conduct, in any one or more of the respects submitted in paragraph First, was negligent; and Third, such negligence of Loyd Turpin directly caused or directly contributed to cause any damage Plaintiff may have sustained.'

Instruction No. 5 was a similar submission of contributory negligence on the part of Mrs. Turpin for her participation, for permitting the contest, or failure to protest. Without further discussion, we hold that these facts did not make a submissible issue of her negligence, and we need not consider that instruction further.

Instruction No. 4 was a submission of assumption of risk. It is vague in its hypotheses, but the principal question for us is whether or not these facts justified any such instruction at all. The doctrine, so far as Missouri is concerned, has been continued if indeed not conceived, in controversy. It was generally held applicable in master and servant cases, but the great bulk of that application has been eliminated by the Workmen's Compensation Act and the Federal Employers' Liability Act. It Assumption of risk is based upon a voluntary consent, express or implied, to accept the danger of a known and appreciated risk; it may sometimes include the acceptance of a risk arising from the defendant's negligence, but one...