Stein v. Rainey

*540 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 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 *541 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 wilfully 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, which is now and was at all times herein-before mentioned in full force and effect, and also in violation of Section 20, Title II, of said Act. “Plaintiff states that defendant Walter L. Rainey wrongfully and wilfully shot and injured plaintiff as aforesaid, and that by said wrongful and wilful 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 wilful 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 twenty-five thousand dollars actual damages, and for the further sum of fifteen thousand dollars 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 ten 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. *542 "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 ivas 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 one 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 ivas 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 fcj . he suffered are accurately portrayed in the petition, with one exeep- ffili'j,,, tion. It is there alleged that he will not be able in the future to q| A perform any kind of manual labor; the proof was that he is per- jj ", manently incapacitated from doing anything which requires any &' j considerable exertion. At the time of his injury plaintiff was thirty *543 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 bind 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, o'r some of them, he bought and paid for whiskey whieb 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 Yinick, 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 ah, a proceeding in equity. The bill alleged that defendant Webb and others, during a period of time beginning 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 objections there was an extended colloquy between court and counsel. Plaintiff’s counsel stated: “Here we have two defendants, one defendant does not appear and we will have a default judgment against him. . . . Now the testimony that I am going to bring in now is principally against the defendant Webb.” The court ruled: “We will hear your testimony as against Mr. Webb; but it will not be competent as against Mr. Rainey at this time.” In response to a renewal of the objection by defendant Rainey’s counsel, the court again ruled: “Of course, it is not com *544 petent as against your client, Mr. Rainey, but only against Mr. Webb.” When the evidence was all in the court instructed the jury as follows : “1-Plf. The court instructs the jury that if you find and believe from the evidence that at the time and place in question the defendant Walter L. Rainey drew a pistol and without any cause shot plaintiff through the back, and if you find that plaintiff suffered injury therefrom, which you find was the direct result of said shooting, then you will find for the plaintiff and against the defendant Walter L. Rainey and assess his damages at such sum not to exceed $25,000, as you may believe from the evidence may be a fair compensation to the plaintiff for the bodily pain, if any, and loss of earning power, if any, which plaintiff suffered and will continue to suffer, if so. "2-Plf. The court instructs the jury that if you find for the plaintiff and against defendant Walter L. Rainey on the preceding instruction, and if you further find from the evidence that the shooting referred to in the foregoing instruction was done with malice, then you may assess in favor of the plaintiff and against the defendant Walter L. Rainey exemplary damages in addition to the actual damages at such sum not to exceed $15,000 as in your judgment will be a warning to defendant not to commit similar acts. "By the term ‘malice’ as used in this instruction is not meant mere spite, hatred or dislike, but is the intentional doing of a wrongful act to the injury of another without just cause or provocation. ‘ ‘ 3-Plf. The total amount of your verdict, however, for actual damages to plaintiff cannot exceed the sum of $25,000, and the total amount of exemplary or punitive damages cannot exceed the sum of $15,000. "By naming these amounts the court does not mean to imply that you shall find these amounts, or any amounts, but merely states these amounts are the amounts sued for in plaintiff’s petition. "4-Plf. If the jury find from the evidence that on or about the 26th day of March, 1922, defendant Walter L. Rainey, while intoxicated, if jmu so find, recklessly, deliberately, and intentionally, and without just cause, shot the plaintiff and thereby caused injury, then you will find the issues for the plaintiff and against said defendant Walter L. Rainey. "And if you further find from the evidence that defendant Charles G. Webb for beverage purposes, sold to or assisted in procuring liquor for said defendant Rainey, and you find that said liquor caused or contributed to his intoxication, and you further find that said intoxication of defendant Rainey, if any, was the direct cause of *545 the injuries, if any, to plaintiff, then you will also find the issues for the plaintiff as against the said defendant Webb. “1-Dft. The court instructs the jury that you will disregard all of the evidence of the plaintiff’s witnesses, Perce Bollinger and A. Yinick, with reference to the defendant Walter Rainey. “2-Dft. The court instructs the jury that if you find and believe from the evidence that the defendant Walter Rainey did not fire the shot, that struck the plaintiff, then you will find for the defendant Walter Rainey.” Thereafter the cause was duly submitted and the following verdict returned: “We, the jury, find the issues for the plaintiff, and do assess his actual damages against defendants, Walter L. Rainey and Charles C. Webb, at twenty-five thousand dollars and his punitive damages at fifteen thousand dollars.” Within due time each of the defendants filed a motion for a new trial and also one in arrest of judgment. These motions were all overruled and thereafter a separate appeal was granted each of the defendants. I. Appellant Webb assigns as error the overruling of his demurrer to the petition. The only question raised by the demurrer was whether the facts stated were sufficient to constitute a cause of action as against the demurrant. Section 20, Article II, of the National Prohibition Act provides: "Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawfully selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication, and in any such action such person shall have a right to recover actual and exemplary damages.” [41 U. S. Statutes at Large, p. 313.] A casual reading of the petition discloses that every element of an action under the statute is comprehended within its averments. The demurrer was properly overruled.. II. Bach appellant contends that his motion in arrest of judgment should have been sustained, on the ground that under the pleadings and the evidence a joint judgment against the defendants could not properly be rendered. In considering these contentions it may be assumed that the petition on its face dis-e¡oses a separate and distinct cause of action against each defendant which in no way affects the other, in other words, a *546 misjoinder both of causes of action and of parties defendant. But even so, it must be held that the defendants consented to the uniting of these two independent law suits, one against Webb and one against Rainey, to be proceeded with as one action; for neither raised any question with respect thereto, either by demurrer or by motion to elect; neither requested a separate hearing; neither even asked a separate assessment of punitive damages. [Norton v. Reed, 253 Mo. 236; Dorrance v. Dorrance, 257 Mo. 317; Ford v. Dickinson, 280 Mo. 206.] Having waived all objections to the trial of the two causes of action in one proceeding, how are the defendants prejudicially affected by a judgment joint in form? Their independent tortious acts united in producing a single injury for which each of them is liable to make full reparation. A judgment could have been rendered against each for the full amount of the damages suffered by plaintiff; the judgment as entered against the two of them imposed upon each no greater burden. If there is a right of contribution between them, with respect to which we say nothing, it is in no wise affected by the form of the judgment. This assignment is overruled. III. Appellant Webb insists that the judgment must be reversed as to him because there was an entire failure of proof that he “assisted in procuring liquor for defendant Rainey which caused his intoxication.” There was no evidence of a specific sale to or procurement for Rainey of intoxicating liquor. Whether the termine. The allegations of the petition that Webb did evidence was sufficient to justify the jury in drawing an inference of such a sale or procure~ent we need not de~ assist in procuring for his co-defendant the liquor which caused the latter’s intoxication were not controverted by an answer, and must therefore, for the purposes of the action, be taken as true. [Sec. 1256, R. S. 1919.] Appellant argues, however, that as plaintiff did not take a judgment by default against him he waived the benefits of Section 1256 and was therefore bound to make proof of every material allegation of his petition. By failing to have the default noted plaintiff may have waived his right to an interlocutory judgment by default, the only effect of which, would have been to have prevented defendant from coming in and making a defense after the expiration of the time given him to plead. [Land & Improvement Co. v. Creason, 264 Mo. l. c. 457.] The section just referred to provides: “Every material allegation of the petition not controverted by the answer, . . . shall, for the purposes of the action, be taken as true.” The operation of this statute is in no way dependent upon the entry of an interlocutory judgment by default. Sperling generally, it determines the extent to which proof is necessary in all cases,' whether there be a default or not. In the instant case it was only *547 necessary for plaintiff to prove, as against the defendant Webb, the amount of his damages. But it is further contended by appellant, that plaintiff on the trial acted on the assumption that there was a general issue, in that, he offered evidence in respect to such an issue and obtained the verdict of the jury thereon, and that he is now bound by that theory of the case. But appellant is in no position to invoke the rule. Whatever theory of the case was entertained and acted upon by plaintiff in the trial court, defendant Webb was not misled thereby. He was not there; and he cannot now complain if plaintiff did an unnecessary thing imperfectly. [School District v. Shuck, 49 Colo. 526; Phillips v. Transit Co., 137 Wis. 189.] Appellant cites many eases which hold, in effect, that the failure to file any pleading which is necessary to form an issue is deemed waived where the parties voluntarily proceed to trial as though issue was properly joined. Included among them are cases in which this court has held that where a reply is necessary to join the issues and the parties proceed to trial, and try the cause, as though a reply were filed, on appeal it will be considered that such a pleading was filed, regardless of whether it was in fact. Lying at the root of all these decisions there is an element of estoppel. They are inapplicable to the facts of this case. IV. Appellant Webb’s next insistence is that the petition afforded no basis for the assessment as against him of punitive damages. The allegation, “that defendant Charles C. Webb . . . unlawfully and wilfully caused, contributed and assisted jn pr0Curing liquor for defendant Walter L. Rainey, which caused his intoxication,” was of itself, in so far as the pleading was concerned, a sufficient warrant under the statute for the assessment of exemplary damages. And its efficacy in that respect was neither increased nor diminished by the further allegations: -“that said acts of defendants were malicious, entitling him [plaintiff] to punitive damages.” Of course the provision of our code, that the compensatory and exemplary damages claimed shall be separately stated, must be complied with; that was done. V. Appellant Rainey complains of the admission in evidence of the testimony of the prohibition enforcement officer; the testimony of the deputy clerk of the United States District Court; and the records of that court. It abundantly appears from the colloquy that occurred between the trial court and.counsel, as well as from the repeated rulings of the court, that all of that, evidence was offered and admitted as against the defendant Webb only. This the jury must have understood at the time of its reception. Not only that but later they *548 were expressly instructed to disregard the whole of that evidence in passing upon the issues as between plaintiff and the defendant Rainey. It is hardly conceivable therefore that appellant was in any way prejudiced by the evidence. The presumption cannot be indulged that the jury were too ignorant to comprehend, or were too unmindful of their duty to respect, the instructions of the court 'pertaining to matters peculiarly within its province. [Salmons v. Railroad, 271 Mo. l. c. 402.] There can be no doubt but that the evidence complained of was competent on the question of punitive damages, as against the defendant Webb. It tended to show, not only the conditions under which intoxicating liquor was furnished Rainey, but Webb’s wilfull, deliberate and systematic violations of the law in that respect, and his utter disregard of the consequences to plaintiff and others of his unlawful acts. So that if this appellant suffered any evil effect from the evidence against his co-defendant, it was a necessary incident of the joint trial of which he cannot now complain. VI. Appellant Rainey next contends that plaintiff’s Instruction 1 was broader than the pleading, in that it directed the jury to find for plaintiff, if they found that “defendant Walter L. Rainey drew a pistol and without any cause shot plaintiff through the back;'’ whereas, the petition charged that defendant “wrongfully and wilfully shot plaintiff.” Appellant argues that under this instruction the jury were authorized to find for plaintiff even though the shooting might have been negligently or even accidentally done. The instruction by clear implication required the jury to find that the shooting was done intentionally and without any legal justification or excuse, and is entirely consistent with plaintiff’s Instruction 4. The contention is without substance. This appellant complains also of plaintiff’s Instruction 4 on the ground 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. A reading of the instruction discloses that it is entirely silent on the subject of the assessment of damages. Nor <joes any instruction direct a joint assessment of damages. Not having requested an instruction directing the jury to assess against each defendant separately the damages, either actual or exemplary, appellant is in no-position to raise the question now. *549 *548 VII. Finally, it is contended by both appellants that the compensatory damages assessed by the jury are excessive. The evidence *549 shows without contradiction that’ plaintiff, a healthy, strong and vigorous young man, thirty years of age, has not only been incapacitated from performing ordinary manual labor, but has been rendered a semi-invalid for the remainder of his life. We are unable to say that an award of $25,000 for that injury is so excessive as to require the interposition of this court. In view of the foregoing the judgment of the circuit court must be affirmed. It is so ordered. All concur, except Graves, J., absent.