*1 Í112 Johnson, courts. Blackhurst v. binding on tbe legal services is judge “A the court where said: (2d) Fed. l. c. [15-18], are rea expert as what himself an appellate trial or court is of a advisory and However, is attorney such evidence fees.” sonable attained, and result Considering all these matters and the
helpful. as out of the paid must be keeping in mind the allowance that say grossly in $3,500 company liquidation, we sets of the enough pay That be little more than adequate. amount would de appellants’ firm for the time expense of the overhead $15,000 modest and fix the cases. We deem a fee of voted to these appellants case, in this figure, paid at.that allowance be Boatright Harry L. is, Ringolsky, I. William Jacobs. J. G. judgment is, therefore, reversed, trial court with direc- appellants tions to enter an order and favor of the $15,000, sum paid named which is to be out of the assets of company liquidation. Gooley Bohling, GG., is concur. foregoing opinion by Westhues, PER C., CURIAM:—The a- dopted judges as the of the court. All the concur. Maryland Casualty Company, Katherine White a Corporation, Appellants, John Bunn. 145 S. W. 138.
Division December 1940. Two, Lynn Ewing M. Ewing Ewing and Emerson, Ewing, & Grant appellants. *2 (6
Gibson Teel respondent. negligent alleged an action BOHLING, C. This Katherine bjr his widow Harry White, instituted and death of car- corporation, an insurance Maryland Company, a Casualty policy. compensation a workmen’s under paying $5000 Mrs. White rier appeal. Plaintiffs defendant. Bunn, judgment for John
Verdict and involving rulings disposed presented issues be contributory negligence of injury and the intentional of fact. White as an issue healthy, good age, with thirty-two years of Harry White was Liquor for the Southwest hearing. eyesight He was a salesman Defendant, custo- Missouri, resided. Joplin, where Company of *3 by thirty-two feet, west, business, east and mer, place sixteen had a of Highway 54 about No. south, side feet, on the north north and wall had a Nevada, The south Missouri. west of fourteen miles Extending near its east end. and window door about the center a shelving. Approximately along wall merchandise north the east counter, foot three shelving sixteen about four west of this feet being flush with the high, the end feet wide and south three feet open only at the north. passageway was wall. The four foot south table, a and wall were some chairs the counter and the west Between was a stove and defendant’s oil barrels. North of counter two the cot. 1937, January 12, 3:00 place about
Harry White called at Bunn’s p. Cook, good Thereafter accom- They later. friends. Clark or were m. leaning Bunn, by others, White, in. and Cook panied came were hunting a rabbits with 22-caliber against counter. Cook had been the gun good how and made about a pistol short barrel some remarks eight There or nine men it was and how loud it would shoot. a boys place, asked Cook hit match or in Bunn’s and someone to gun car, lying put then his his the floor. Cook did. Cook on playing men cards. or Twenty returned. the started Some of thirty came in. Bunn later Fritter In the meantime minutes Louis just anything need;” I “Harry, up, had White: check see said to gone White the counter. Fritter and started behind Cook scuffling fun, though made motion cutting-up Cook a as get my big gun gun. he had a then said to Fritter: “Go Bunn him will shoot.” Fritter went behind the and show how loud it gun brought a 38-caliber and shot at the floor. Bunn counter and back my one, Louis, gun.” I Bunn “I mean then said don’t mean gun building procured 45-caliber hammer from the rear of the his Colt and, returning eighteen point approximately inches north of to a gun counter, posi- or four raised feet west of the three bring opposite ear. it down right tion about He started to point floor. thé was at a about three feet shoot at the When top counter, floor above the off. The bullet struck it went ¡s passed through of the window. ricocheted White head out regaining day White fell back of the and died next without counter by approximately consciousness. bullet would have missed White The eight Bunn, realizing six to feet had it not ricocheted. not out, shooting over,” White, was hurt said: Bunn on “Come everyone building that he testified saw White and in the while else raising gun; at that White behind counter south end, writing orders; my “I down don’t know whether thumb I pulled trigger.” off of the hammer came or if to five Three elapsed minutes between Fritter and Bunn shots. negligence,
Plaintiffs’ cause was based petition of-action charging negligent-and “were the acts of Bunn reckless and in disregard safety” Contributory neg and. deceased others. ligence defense, McLaughlin was an if available established. Mar latt, III], [1, [I, 8]. petition charge did The not did not establish that any shooting person defendant acted with óf intention or in certainty any- realization that he would shoot substantial person. Defendant intended shoot- but intended no harm to any or deceased other. His conduct but did have been give rise to a injury. based cause action on ah intentional by plaintiffs ratio clecidencli of observations cases relied restrict justifiable defenses to or excusable available applicable injury are an intentional and not to cases only shooting. wherein the evidence a negligent establishes *4 Morgan (Banc, 1856), 22 v. Mo. 373, negligent' Cox “was slave, shooting plaintiff’s only of thé question and the was as to negligence.” fact (374) The disposed upon court ease grounds negligent shooting (376), a subsequent and the obser upon by made plaintiffs vations there and were dicta. relied Conway (Banc, 1877), v. 346, Reed 65 Mo. an mentions “unlawful wrongful shooting” (347), trespass” (355), and “an intentional by plaintiff establishing “carelessness neg defendant’s ligence.” The reasoning conforms to the of the dictum in Morgan (351). v. Cox 1889), v. (Banc, 653, 661(2),
Dowell 99 Mo. 12 900, Guthrie S. W. 902(2), 598, Rep. 602{2), 17 Am. St. an action was founded injury by plaintiff sky Morgan a rocket. The Conway cases are cited and discussed and we it clear think therefrom Morgan (and that the dictum of holding Conway case of the ease) injury be followed where is unintentional and plaintiff’s negligence. upon case rests Dowell v. also Guthrie [See
1116 895, 654, 893, 22 criticism 1893), 646, 116 W. and the
(Banc, Mo. S. Marlatt, McLaughlin in Conway supra.] case v. 454, 456, 114 W. I, 1908), 451, 214 Mo. S. (Div. Mulhall Morgan v. really mentioned, negligent injuries are 4, 5, where intentional “the petition charged The harm. involved an intentional negligently shooting people a shot defendant into crowd appellate in submitted the cause plaintiff,” and counsel defendant’s dangerous a Reed, Frank theory “defendant shot at court on the plaintiff him wounded desperate character, and the bullet missed ’’ an inten- an abdomen. Defendant had intention to shoot harm is harm; circumstances intention tion such Thomp- victim. v. from the intended to the actual transferred [Carnes (Mo.), (2d) 903, there 48 W. and authorities son S. 904[3], cited.] Atchison v. are, think, applicable we These observations 187, although, opinion, (Mo. App.), 24 W. from the Procise S. pleadings negligence. sounded in only an (Mo. App.), Hartman v. Hoernle 201 W. discusses S. intentional harm.
We a action understand defendant concedes submissible case of Ordinary very high care on defendant’s able degree Marlatt, 656, 672, v. 246 S. W. of care. [McLaughlin among shooting of White been have [6], others.] accidental, unavoidably test is not but was not accidental. The injury was free whether was but whether defendant accidental from blame. off the hammer or slipped Whether defendant’s thumb trigger feet pulled pointed defendant when the three above the floor fault and actionable. defendant’s predicate
Was which de there substantial evidence contributory negligence? We think not. fendant’s instruction on (we specifically Our examination of authorities mention stressed), defendant, they the cases in so far as discloses the sustain persons evidence most favorable to the defendants established that the shot We participating in the transactions. not discuss dis do contributory assumption negli tinctions of the risk and between gence. McLaughlin Marlatt, 656, 672(III),
In Mo. plaintiff threw clods to attract the attention of Marlatt and [8], companions, grass in tall made the then concealed himself grass wiggle way wave or as to induce the belief that a such hiding so, actively fox or animal If par other wild therein. ticipated leading being in the event to his shot. (Mo. App.),
In Green v. 199 W. Standard Oil Co. S. 748[1], rat, which, Chartrand was at and wounded *5 endeavoring get away, crawling toward plaintiff, was who said: to ‘ ‘ ’’ now, get fired, striking then There he is him. Chartrand shot the plaintiff’s ankle. 24, 27, 32, 327, 328, 330, 70 N. W. Manning, 112 Mich.
Bahel v. judgment 523, 525, Rep. Am. St. affirmed a 36 L. R. A. plaintiff that Defendant’s evidence showed had been plaintiff. for fixing giving gun, presumably on defendant’s advice defendant unloaded, twenty gun and while defendant had minutes the direction; plaintiff plaintiff’s “Snap in that twice said: it pointed so, off, hurt;” moving and that it defendant did without the wont gun, negligence shot. plaintiff knowing was Defendant’s in not gun ruling was loaded was established. The effect was contributory negligence, quoted part that in instruction on in advantage brief, gave every defendant he was entitled to. Petry Hopping, 97 N. J. L. 118 Atl. expressly stated the case issue of defendant’s actionable turned plaintiff. vel non. There no It affirmed was occasion contributory negligence general to discuss as a matter of fact. The among others, observation, plaintiff’s contributory negligence that properly jury was mere submitted to the assertion made in conclusion and of contested no issues reasoned ruled. another, Defendant intent to harm shot with the discussion is principally wrong. devoted to an intentional Pláintiff and defendant entered, in plaintiff defendant’s store. robbers Three covered defendant, escaped but failed cover promptly kitchen, who gun and, extinguishing found a light, passed the kitchen to the adjoining flight plaintiff, took starting storeroom. robbers leave, opened kitchen warning the door the darkened without by and was shot defendant. appears
Defendant’s defense to be an implied based consent by others; is, White the actions of defendant and that White injury. risk argues assumed the in on Defendant all were disregarded risk;” adult, fun “but an exercising reasonable care, not expose would himself to the risk White took without caution- ing against firing requesting pistols or in the small room cease removing place safety. or himself to a participate Individuals dangerous businesses, sports, pastimes being negligent. without Contributory negligence, go, things postulates negligence. as Defend- says engaged ant was not danger unlawful act contingent upon premature to White was discharge accidental gun ricocheting so, of defendant’s and the of the bullet. If defendant actionably not negligent procuring gun was his with the intent floor, actions, least, shoot at the or in at until he started the upward gun long movement of the to shoot. So as defendant negligent, contribuíorily not how ? White was killed reason of into the floor. Defendant’s raising gun permitting slip his thumb to from the hammer pulling trigger or his while pointed about three feet above floor proximate constituted actionable *6 knowledge and consent of present
"White was with the discharged had been mutual benefit. knew shots and for their He therein. participated show he floor, but the evidence does not at the order for mer out defendant’s Defendant instructed make to- behind counter They were friends. White was chandise. far as executing when shot. So engaged defendant’s instructions right upon contributory negligence rely concerned is be directed at the implied assurance that the shot would friend’s proceed could with implied friend’s assurance that he floor and his order, gave to a making at least until defendant’s acts rise out the longer rely upon assurances. White’s possibility he could no said mere Guthrie, v. did not constitute presence the store [Dowell 900, 903(5), Rep. 598, 17 Am.. 653, 666(5), St. knowledge charged He was not with defendant intended 605(5).] contributory negligence usually question pistol. While is raise jury, record which for the there is no substantial eontribiitory negligence predicate part on the of White- from the on the of defendant. inception of actionable [Consult (Mo. App.), (2d)W. Atchison S. v. Procise 190.] Cooley is reversed and the cause is remanded. CC., hues, West concur. foregoing by Bohling, C., adopted
PER opinion CURIAM: The judges All as the of the court. concur.
Mary Gladys E. friend, Knaebel, Alfred Hart, her next Appellant. S. W. 143.
Skeets, Two, December 1940. Division