496 S.W.2d 326 | Mo. Ct. App. | 1973
This is the sad saga of the unlucky demise of “Lucky,” a short-haired pointer registered under the name of “Conviction” and owned by plaintiff Bernell Merriman. In his amended petition, plaintiff charged that on November 17, 1970, defendant Mrs. John (Shirley) Johnson “negligently shot and wounded” Lucky requiring his destruction by a veterinarian; and, in her answer and subsequently upon trial, defendant not only admitted shooting Lucky but also averred that she had done so intentionally when Lucky was discovered in the Johnson chicken house and in the act of chasing, attempting to kill, and killing chickens and ducks owned by the Johnson family. (All emphasis herein is ours.) Under plaintiff’s verdict-directing instruction 4 requiring findings, inter alia, that defendant shot Lucky and “was thereby negligent,” the jury returned a verdict for plaintiff and assessed his damages at $400. From the judgment entered upon that verdict, defendant appeals. Her “Points Relied On” here [Rule 84.04(d) V.A.M.R.], one of which is that “plaintiff failed to make a submissible case of negligence,” require an examination of the evidence.
About September 1, 1970, defendant, her husband and their four children moved into a farm home on a S-acre tract on the east side of a north-south road in the southwest quadrant of Greene County. Three outbuildings were located on this tract, namely, a smokehouse near the rear of the dwelling, a chicken house about twenty to thirty feet behind or east of the smokehouse, and a barn some distance north of the chicken house. There were two openings in the chicken house, to wit, one of undisclosed dimensions (sometimes referred to as “a door”) in the south end which was covered with a piece of tin “either propped or [with] just a nail or board or something holding it,” and another described as “a small opening” for the chickens. The chicken house was not within a fenced enclosure, but it provided a place of shelter and abode for defendant’s flock of about twenty chickens acquired to supply eggs for family use.
From defendant, the only witness testifying concerning the course of events in and around the chicken house on the afternoon of Tuesday, November 17, 1970, we glean the following. As defendant was reading the newspaper in her home that afternoon, her “older boy”
Passing to the testimony of plaintiff Merriman, we find that on the afternoon of November 17, 1970, he took Lucky and Tim, one of Lucky’s pups, into the neighborhood of defendant’s home to work them in the field. He had worked dogs in that same area during previous years when another family occupied the house into which defendant and her family moved in September 1970; but, on the date of the events here discussed, plaintiff did not know, and made no inquiry to determine, who then lived on “the Johnson place” or what stock or fowl was kept there. Parking his truck on an east-west road “somewhere between a half and three-quarters of a mile” (so he “guessed”) south of defendant’s home, he “took Tim out and run him” first in the open “rolling land” between the truck and defendant’s home, working Tim “within seventy-five to a hundred yards” of the Johnson house — “somewhere around a hundred yards east of the chicken house.” However, plaintiff’s primary interest that afternoon was “trying to get [Lucky] ready for ... a national amateur [field trial] in St. Louis November 4th and Sth (sic), I believe.” In furtherance of that purpose, plaintiff ran Lucky to the north in the same area “to see if I could send him further out and how he handled.” In accordance with Lucky’s training, plaintiff sent him away by sounding “two short blasts” on a whistle; and, when last seen by plaintiff prior to the shooting at defendant’s chicken house, Lucky was north of plaintiff and was running to the north over the crest of a rise which (so plaintiff opined) was about 250 yards from defendant’s home.
When Lucky thus disappeared from sight over the brow of the hill, plaintiff was “half a mile, maybe a little over” north of the east-west road on which he had parked his truck. Thereafter, plaintiff “probably walked a little further” before
Upon trial, the veterinarian stated that Lucky had only one wound resulting from a bullet which followed a generally “posterior” course in the dog, indicating that the dog was facing or coming toward the person who shot him. Although Lucky’s hind legs were paralyzed at the time of the veterinarian’s initial examination, he could not say whether such paralysis occurred immediately when the dog was shot or developed over a subsequent period which might have ranged from a minute to an hour.
Plaintiff does not, and could not well, complain about defendant firing at the dog which bolted out of her chicken house with one of her chickens in his mouth [§ 273.-030, RSMo 1969]; but plaintiff theorizes Lucky was not that dog and defendant was negligent in shooting Lucky when he subsequently appeared on the scene, attracted thereto by defendant’s series of shots theretofore directed at the guilty dog who escaped. In other words, plaintiff conjectures that two dogs were involved in the chicken house affair, to wit, (1) the guilty marauder (then unidentified and never thereafter sighted or found) who charged out of the chicken house, ran south into the “garden spot” and disappeared, and (2) Lucky, who in accordance with his training innocently responded to defendant’s rifle shots directed at the marauder, ran north out of the “garden spot,” and was shot “negligently” and without justification.
The principal circumstance upon which plaintiff’s counsel undertakes to support this artful, ingenious theory is defendant’s statement in a pre-trial deposition, repeated when called to the witness stand at the outset of plaintiff’s evidence upon trial, that the marauder who rushed out of the chicken house and chased the other chickens around their nesting place was “a long-haired dog,” whereas in fact Lucky was a short-haired dog. It may be noted in passing that defendant also told plaintiff’s counsel that “in all the excitement, it would be hard to say for sure what [the hair] was, whether it was long or short, when [the dog] came out of the chicken house.” But putting that aside, other relevant and significant circumstances overwhelmingly militate against and convincingly deny the validity of plaintiff’s two-dog theory. The only witness who testified concerning the chicken house affair was defendant. She said the marauder was “white and had a little brown on its head,” an accurate description of Lucky; and she positively identified Lucky in a photographic exhibit as the dog that broke out of the chicken house. That was the dog whose “hind legs went down” when he was shot while in front and thus east of
In determining the sufficiency of the evidence to make a submissible case, we consider the evidence in the light most favorable to plaintiff and accord to him the benefit of all supporting inferences fairly and reasonably deducible from the evidence. Hecker v. Schwartz, 426 S.W.2d 22, 26(2) (Mo.1968); Berry v. Harmon, 329 S.W.2d 784, 789(3) (Mo.1959). But this broad principle is necessarily subject to the sensible qualifications and limitations that the court is not thereby required or permitted to supply missing evidence or to disregard the dictates of common reason and accept as true that which, on the whole record, obviously is not true, or to give plaintiff the benefit of unreasonable, speculative or forced inferences. Adler v. Laclede Gas Co., 414 S.W.2d 304, 306(1) (Mo.1967); Kirks v. Waller, 341 S.W.2d 860, 863(3) (Mo.1961); Atcheson v. Braniff International Airways, 327 S. W.2d 112, 117(7) (Mo.1959); Shelton v. Bruner, 449 S.W.2d 673, 676 (Mo.App.1969); Martin v. Sherrell, 418 S.W.2d 209, 211(1) (Mo.App.1967). And in this connection we remind ourselves that “[a]n inference is a deduction logically and properly drawn by reason from proven or admitted facts. It is more than, and cannot be predicated on, mere surmise or conjecture, i.e., ‘ “the possibility that a thing could have happened. ... an idea or a notion founded on the probability that a thing may have occurred . . . . ” ’ Draper v. Louisville & Nashville R. Co., 348 Mo. 886, 893, 156 S.W.2d 626, 630; Louisville & Nashville R. Co. v. Mann’s Adm’r., 227 Ky. 399, 13 S.W.2d 257, 258.” Smith v. Seven-Eleven, Inc., 430 S.W.2d 764, 769(4), and cases there collected in notes 3 to 9, inch (Mo.App.1968); Economy Gas Co. v. Bradley, 472 S.W.2d 878, 880 (Mo.App.1971).
A “case is not to be submitted unless each and every fact essential to liability is predicated upon legal and substantial evidence. Neither may any fact essential to submissibility be inferred in the absence of substantial evidentiary basis. In other words, liability cannot rest upon guesswork, conjecture or speculation beyond inferences reasonably to be drawn from the evidence. Willey v. Fyrogas Company, 363 Mo. 406, 251 S.W.2d 635, 642; Brawley v. Esterly, Mo., 267 S.W.2d 655, 659; Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316, 323; 32 C.J.S. Evidence § 1042, p. 1116 [now 32A C.J.S. Evidence § 1042, p. 797]. The question of whether the evidence in a given case is substantial is one of law for the court. Vietmeier v. Voss, Mo., 246 S.W.2d 785, 787-788; Tharp v. Monsees, Mo., 327 S.W.2d 889, 899.” Probst v. Seyer, 353 S.W.2d 798, 802(2,3), 91 A.L.R.2d 1252 (Mo.1962); Gibson v. Newhouse, 402 S.W.2d 324, 327-328(6-9) (Mo.1966); Graham v. Conner, 412 S.W.2d 193, 203(19,20) (Mo.App.1967).
Careful consideration of the record with due regard for the foregoing principles constrains the conclusion, so we are convinced, that plaintiff did not make a submissible case. If other or more favorable evidence had been obtainable, we are satisfied that it would have been produced by plaintiff’s perspicacious counsel. No pleaded theory, on which plaintiff might make a submissible case with the available witnesses and evidence being suggested or apparent, it becomes our duty to dispose of the case finally [Rule 84.14; Bailey v. Kershner, 444 S.W.2d 10, 16(8) (Mo.App.1969)], as has been done frequently in similar situations. Graham v. Conner, supra, 412 S.W.2d at 205(26), and cases there cited.
The judgment for plaintiff is reversed.
. Defendant’s four children were then thirteen, eleven, nine or ten, and five years of age, but the record does not reveal how many of the four children were boys or' the age of the “older hoy.”
. Defendant said that “when I first saw [plaintiff] he was walking right straight from the east.”