Manson v. May Department Stores Co.

Citation71 S.W.2d 1081,230 Mo.App. 678
PartiesNINA MANSON, RESPONDENT, v. MAY DEPARTMENT STORES COMPANY, A CORPORATION, APPELLANT
Decision Date05 June 1934
CourtCourt of Appeal of Missouri (US)

Appeal from the Circuit Court of City of St. Louis.--Hon. Arthur H Bader, Judge.

AFFIRMED AND REMANDED.

Joseph N. Hassett and Ernest E. Baker for defendant.

(1) (a) Plaintiff failed to prove knowledge either actual or constructive on the part of the defendant of the defect which caused the white coating to fall and the entire evidence does not show such knowledge. Broughton v. S. S. Kresge Co., 26 S.W.2d 838; Cash v. Sonken Galamba Co., 17 S.W.2d 927; Scott v. Klines, Inc., 284 S.W. 831; Vogt v. Wurmb, 300 S.W. 278; Berberet v Electric Park Amusement Co., 3 S.W.2d 1029. (b) Plaintiff submitted her case to the jury in an instruction requiring the jury to find specific negligence on defendant's part. She is bound by the theory adopted during the trial and therefore the burden is upon her to prove knowledge or notice of the defective condition that caused the white coat to fall. Torian v. Park View Amusement Co., 56 S.W. 134; Kincaid v. Birt, 29 S.W.2d 97. (2) (a) The testimony of witness Johnston about a telephone conversation with Dr. Rhodes was competent relevant and material. Wolfe v. Mo. P. Ry. Co., 97 Mo. 473; 22 C. J. 193. (b) After witness Johnston had testified about the telephone conversation, plaintiff objected thereto, but did not move to strike evidence. The court did not commit error in failing to strike the evidence under these conditions. Chouteau v. Jupiter Iron Works, 94 Mo. 388; Cazzell v. Schofield, 8 S.W.2d 580. (3) (a) The trial court ruled correctly in sustaining objection to plaintiff's question as to whether plaster had fallen in infants' department prior to September 1, 1930. The question was too general uncertain, unlimited and remote. Root v. Kans. City Southern Ry. Co., 195 Mo. 348, l. c. 375; Wing v. Smith, 190 Ill.App. 275. (b) Plaintiff's offer of proof that witness would testify that plaster had fallen three times prior to September 1, 1930, was insufficient in that it was too unlimited, uncertain and remote and did not show that the expected answer was material, relevant or competent or what fact plaintiff expected to prove by the answer. Defendant's objection to the offer of proof was properly sustained. Byam v. Kans. City Pub. Ser. Co., 41 S.W.2d 945; Root v. Kans. City Southern Ry. Co., 195 Mo. 348, l. c. 375; 3 C. J. 825, section 736. (c) Evidence that plaster fell subsequent to September 1, 1930, was incompetent, irrelevant and immaterial. The trial court properly sustained objection of defendant to that evidence. Hicks v. Veaths, 46 S.W.2d 604; Sparkman v. Jacksonville Coal Co., 251 S.W. 738. (d) Proof of accident or injury to witness Belle Finley Slater by falling plaster was not competent, relevant or material and defendant's objection thereto was properly sustained. Gable v. Kansas City, 148 Mo. 470. (e) Where plaintiff's evidence was stricken out or objection to question was sustained by trial court, and no offer of proof was made or exception saved and same evidence was later admitted and was before the jury, the ruling of the trial court does not constitute prejudicial error. Steffen v. S.W. Bell Tel. Co., 56 S.W.2d 47; Grubb v. Kans. City Pub. Ser. Co., 45 S.W.2d 71; Byam v. Kansas City Pub. Ser. Co., 41 S.W.2d 945. (4) (a) Where the defendant is a corporation and the evidence shows that the defendant is represented by an insurance company and plaintiff's injuries are such that they may incite feeling on the part of the jury correct cautionary instructions are proper. Aronovitz v. Arky, 219 S.W. 620; Huss v. Heydt Bakery Co., 210 Mo. 44, l. c. 56. (b) Defendant's instruction 6, 7 and 8 are the converse of plaintiff's instructions and correctly state the law. They could not have misled the jury. Instruction 5 correctly defined term "ordinary care" used in plaintiff's instructions. The trial court properly gave these instructions to the jury. Owen v. Chicago G. W. Ry., 47 S.W.2d 195; Am. Tob. Co. v. Schullenberg, 17 S.W.2d 557; Huss v. Heydt Bakery Co., 210 Mo. 620; Lang v. K. C. C. C. & St. J. Ry., 285 S.W., l. c. 75. (c) The evidence of plaintiff and defendant conflicted sharply and instruction on credibility of witnesses was proper and correct. Wendling v. Bowden, 252 Mo. 647, l. c. 693; Crews v. Wilson, 281 S.W. 44. (d) The trial court erred in granting plaintiff a new trial because plaintiff was not entitled to recover under the evidence and the instructions submitted to the jury. Homuth v. Metro Street Ry., 129 Mo. 629; Thompson v. Granite Bituminous Co., 203 S.W. 496, 199 Mo.App. 356. (5) (a) The marking of plaintiff's instruction on the measure of damages "refused" and giving said instruction to the jury was not prejudicial error. Carpenter v. Burmeister, 273 S.W. 418; Gibson v. Wells, 258 S.W. 1; Heckfuss v. Amer. Packing Co., 224 S.W. 99; Vanbuskirk v. Railroad, 131 Mo.App. 357, l. c. 363. (b) Plaintiff did not preserve in the motion for new trial the objection she now makes to the marking of plaintiff's instruction on the measure of damages "refused" and said question is not before the appellate court for review. Szuch v. Ni-Sun Lines, 58 S.W.2d 473; Cooper v. Armour & Co., 15 S.W.2d 946; Carpenter v. Burmeister, 273 S.W. 418; Weeland v. R. R., 144 Mo.App. 205; Garvey v. Piel, 43 S.W.2d 774; Crawford v. Amusement Co., 37 S.W.2d 581. (c) Defendant's instructions were proper under the issues submitted to the jury by plaintiff's instructions and defendant's instructions are proper even under a res ipsa loquitur case. Vogt v. Wurmb, 300 S.W. 278; McClosky v. Koplar, 46 S.W.2d 557. (6) Defendant's instruction No. 7 was proper and did not give undue prominence to defense. Dittmeier R. E. Co. v. Southern Surety Co., 289 S.W. 877, l. c. 886; Bollinger v. Curtis Mfg. Co., 249 S.W. 911; Kline v. Curtis Mfg. Co., 10 S.W.2d 323.

Barak T. Mattingly and Alva W. Hurt for respondent.

(1) (a) It was not an essential element of plaintiff's case that defendant have knowledge either actual or constructive of the defect in the plastering. The case came under the res ipsa loquitur rule and the pleadings and evidence were sufficient. The court did not commit error in refusing to give defendant's demurrer at the close of the whole case. Garfinkel v. Nugents, 25 S.W.2d 122; Snart v. White, 5 S.W.2d 668; Riecke v. Anheuser, 227 S.W. 631; Kean v. Piano Co., 227 S.W. 1091; McCloskey v. Koplar, 46 S.W.2d 557; Stewart v. Railway Co., 30 S.W.2d 1000. (b) If plaintiff was entitled to go to the jury on the res ipsa loquitur theory, the demurrer was properly overruled, regardless of plaintiff's instruction or any instructions that were afterwards given in the case. Benzel v. Anishanzlin, 297 S.W. 180; Schroeder v. Wells, 276 S.W. 60. (2) The trial court's action in granting plaintiff a new trial should be sustained for the following reasons: (a) The marking of plaintiff's instruction on the measure of damages "refused" and giving said instruction when so marked was prejudicial error. Williams v. Lynchburg T. & L. Co. (Va.), 128 S.E. 732, 734. (b) The instructions did not conform to the pleadings and the evidence and were not within the purview both of the pleadings and the evidence. Telaneus v. Simpson, 12 S.W.2d 920, 929; State ex rel. v. Ellision, 270 Mo. 653; State ex rel. v. Daues, 314 Mo. 282; State ex rel. v. Allen, 282 S.W. 46, 52. (3) The court erred in giving defendant's instruction No. 7. Said instruction gave undue prominence to the defense. Causey v. Wittig, 11 S.W.2d 11, 15; Fantroy v. Schirmer, 296 S.W. 235, 238; Rankin v. Gough, 6 S.W.2d 640. (4) (a) As the trial court concluded the verdict was unjust it had a right, and it was its duty, to grant a new trial, and the trial court should be encouraged in the performance of that duty by this court. McCarty v. Transit Co., 192 Mo. 396, 401; Devine v. City, 257 Mo. 470, 475; Lorenze v. Railroad, 249 Mo. 182, 187. (b) If the action of the court in sustaining the motion for a new trial can be sustained on any ground then this court will not disturb the action of the trial court. Farris v. Pitts, 300 S.W. 840; Berkemeier v. Reller, 296 S.W. 739; Wallace State Bank v. Corn Exchange Bank, 282 S.W. 86; Rasch v. Ins. Co., 232 S.W. 183; Vaught v. Hex Brown Co., 289 S.W. 655, 657.

BECKER, J. Hostetter, P. J., and McCullen, J., concur.

OPINION

BECKER, J.--

This is an action for damages for personal injuries alleged to have been sustained by plaintiff as the result of plaster falling from the ceiling while a customer in the store of the defendant. The verdict resulted in favor of the defendant and against the plaintiff. The trial court thereafter sustained plaintiff's motion for a new trial and the defendant in due course appeals.

Plaintiff's amended petition alleged negligence generally, and the defendant's answer thereto was a general denial. Upon trial of the case however, the instructions given at the plaintiff's request submitted her case to the jury upon an issue of specific negligence.

Plaintiff's testimony tended to prove that on September 1, 1930, accompanied by a friend, she went to the store of the defendant company and that while she was in the infants' wear department, located on the fifth floor of defendant's building, and was leaning over a table examining some infants' rompers, plaster fell from the ceiling immediately above where she was standing, striking her on the head and shoulders, and that as a result thereof she had a miscarriage some three weeks later.

The testimony adduced on behalf of the defendant tended to show that some plaster finish, about the thickness of a blotter had fallen from the ceiling as testified to by plaintiff, but that none of the plaster...

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