forsythe v. Shryack-Thom Grocery Company

Decision Date04 June 1920
Citation223 S.W. 39,283 Mo. 49
PartiesJOSEPH D. FORSYTHE, Appellant, v. SHRYACK-THOM GROCERY COMPANY
CourtMissouri Supreme Court

Appeal from Adair Circuit Court. -- Hon. Charles D. Stewart, Judge.

Affirmed.

Campbell & Ellison and Cooley & Murrell for appellant.

(1) The instructions are conflicting. Russell v. Poor, 133 Mo.App. 729; Butz v. Const Co., 137 Mo.App. 228. (2) Defendant's Instruction 5 is erroneous. If McGrew, the owner of the building, directed plaintiff to make repairs in a certain way or that could only be made in a certain way he was rightfully on the premises when acting on that direction even "without the invitation or request of defendant."

Higbee & Mills for respondent.

(1) The petition does not state facts sufficient to constitute an action. It in substance, alleges that plaintiff, with the knowledge and consent of the defendant, went into defendant's building on his own business. It does not allege an invitation, or that plaintiff was even licensee. The court therefore erred in overruling defendant's objection to the introduction of any evidence, and in submitting the case to the jury. Bender v. Weber, 250 Mo. 567; Glaser v. Rothschild, 221 Mo. 184. (2) Plaintiff's own evidence is clear that he went into defendant's building on his own business without even the knowledge of defendant or any of its employees; hence, the court erred in giving plaintiff's instructions, and in submitting the cases to the jury. (3) The court erred in giving plaintiff's instructions; they broadened the issues. There is no invitation pleaded in the petition, nor was there any evidence of an invitation. The most that is claimed is that Charles Shryack, a clerk in the defendant's store, permitted Otto to remove the window frames from the inside of defendant's building. The instructions authorized a finding from this fact that defendant invited plaintiff to fill the spaces with brick and mortar from the inside. (4) There being no justification for the giving of plaintiff's instructions, either in the petition or the evidence, error may not be predicated on the contention that defendant's instructions are not consistent with plaintiff's. State ex rel. v. Ellison 176 S.W. 13.

MOZLEY C. White and Railey, CC., concur.

OPINION

MOZLEY, C. --

This case was certified here by the Kansas City Court of Appeals, on the ground that its opinion is in conflict with those of the Springfield Court of Appeals in State v. Bailey, 181 S.W. 605, and Planters' Bank v. Phillips, 186 S.W. 752, in regard to time for filing bill of exceptions.

The petition, as set out in appellant's abstract, states, in substance, that defendant was in possession and control of a two-story brick building in Kirksville, Missouri, carrying on in said building a wholesale grocery business, under the name of "Shryack-Thom Grocery Co.;" that there was a hatchway or elevator opening, near the northwest corner on each floor, which was used by defendant for hoisting and lowering goods to and from said floors; that it was and became the duty of defendants to put and keep their said premises, hatchway, openings and appliances in a safe condition, and to protect from injury all persons having lawful business upon said premises; that on the -- day of October, 1908, plaintiff, with the knowledge and consent of defendant, was working in and about said building and, without his fault, fell through the hatchway and opening of the first floor to the basement, and sustained the injuries complained of in petition; that the front part of said building was filled with goods, boxes and other articles; that the rear end of said room, near the elevator, was dark on account of the light being shut out by the goods and boxes aforesaid; that plaintiff was unfamiliar with said elevator, and the opening aforesaid, and was not aware of the existence and danger thereof; that it was the duty of defendant to warn plaintiff of the dangers of said hatchway and opening, which it carelessly and negligently failed to do; that in consequence of the aforesaid wrongful acts, neglect and default of defendant, and without fault of plaintiff, he fell into and through said hatchway and opening on the first floor aforesaid, on the date aforesaid, was injured as alleged in the petition, and was damaged in the sum of $ 7,500, etc.

Defendant's answer admitted its incorporation, and denied every other allegation of the petition.

The evidence, instructions and rulings of the court will be considered, as far as necessary, in the opinion.

The jury returned a verdict for defendant. Plaintiff filed his motion for a new trial, which was overruled, the cause appealed by him to the Kansas City Court of Appeals, and certified to this court, as heretofore stated. The Court of Appeals reversed and remanded the cause for a new trial in an opinion by Judge Johnson.

I. It is insisted by respondent that plaintiff's bill of exceptions was not filed within the time required by Section 2029, Revised Statutes 1909, as amended by the Laws 1911, page 139. This contention is without merit, as it was filed on August 22, 1916, and the cause was docketed for hearing at the October term, 1916. [State ex inf. v. Sweaney, 270 Mo. 685, 688, 195 S.W. 714.] The conclusion reached by the Kansas City Court of Appeals, in respect to this matter, is correct.

II. In order to pass upon the instructions, it will be necessary to ascertain and determine what relation plaintiff sustained towards defendant at the time and place of accident.

Appellant testified in chief, that: "Jack McGrew, the owner of the building occupied by defendant, employed me prior to the day complained of to fill up the three windows in the second story of the building with brick. . . . I employed Walter Otto to go and remove the window frames, and when he got the frames removed he notified me he was ready for my part of the work. I came in the building through the office and went down on the east side of the partition until I got back there to go upstairs, to see what was the best way to take up the mortar and do the work. When I got to the elevator I fell in the hole. . . . When I entered the office to pass through the building to go upstairs there was a young lady bookkeeper in the office, and I think I saw Charlie Shryack there." On cross-examination, plaintiff testified as follows:

"When I entered the office to go in the back part of the building I never spoke to anyone in charge of the place. I never asked permission of Mr. Shryack or any other employee. I didn't tell anybody I was going in there. I walked in there without asking leave or permission, and asked nobody's consent. I didn't tell them anything when I came in. . . . I never talked to Mr. Shryack before the injury about going into the building, nor on any other subject. Neither did I talk to any other person connected with the Shryack-Thom Grocery. . . . I was working for Mr. McGrew."

Walter Otto testified as follows: "I removed the windows and frames from the west side of the building on the second floor occupied by the Shryack-Thom Grocery. I went to the office and spoke to Charlie Shryack, and I told him I wanted to get up there and take out the frames. We went out the back door of the office and through that part of the building used as a storage place for goods. We went past the elevator and I believe went on the west side of it, and then went up the stairway to the second floor. There was a lot of goods and boxes piled along the west side of the building, and we removed them. Some men there helped me at my request. We had to remove them to get to the windows. That was before Mr. Forsythe got hurt."

The foregoing constituted plaintiff's evidence, in regard to what occurred before he was injured.

M. C Shryack testified that he was secretary-treasurer and general manager of defendant company. He...

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