Anderson v. Kansas City Baseball Club
Citation | 231 S.W.2d 170 |
Decision Date | 10 July 1950 |
Docket Number | No. 1,No. 41820,41820,1 |
Parties | ANDERSON v. KANSAS CITY BASEBALL CLUB |
Court | Missouri Supreme Court |
Alfred Kuraner, Irving Kuraner, Kuraner & Kuraner, all of Kansas City, for appellant.
John J. Alder, Herman M. Swafford, Kansas City, for respondent.
ASCHEMEYER, Commissioner.
Defendant's motion to dismiss plaintiff's first amended petition was sustained unless plaintiff filed an amended petition within twenty days. Plaintiff having failed to plead further within the time allowed, a judgment was entered dismissing the cause. This was a dismissal with prejudice and constitutes a final judgment from which an appeal may be taken. Laws 1943, p. 385, Sec. 101, Mo.R.S.A. Sec. 847.101; State ex rel. McMonigle v. Spears, 358 Mo. 23, 213 S.W.2d 210; Husser v. Markham, Mo.App., 210 S.W.2d 405. The petition prayed damages in the amount of $10,000.00. Jurisdiction is in this Court because of the amount involved.
The petition alleges that plaintiff attended a baseball game on September 5, 1947, at the premises operated by defendant; that she was directed to a seat in the stadium by one of defendant's employees; and that, while seated in the stadium, she was struck by a baseball which was driven with great force as a result of which she sustained certain injuries and incurred medical and hospital expense.
The petition charges the following acts of negligence:
'4. Plaintiff states that her said injuries were caused by the negligence of defendant, its agents, servants and employees in that defendant knew or in the exercise of reasonable care should have known that in the game of baseball there exists a constant hazard that balls may be driven into the seats occupied by spectators and inflict upon the spectators great bodily harm; that although plaintiff was wholly unaware and ignorant of such hazard the agents, servants and employees of the defendant seated her in a portion of the grandstand unprotected by wire screen or otherwise and in so doing were negligent in not adequately warning her of such hazard or providing screens or other safeguards.
The question presented upon this appeal is whether the petition states sufficient facts to constitute a claim against the defendat. At the outset, defendant insists that its motion to dismiss the petition was properly sustained because the petition fails to state any facts from which it may be inferred that plaintiff was an invitee upon defendant's premises and not simply a licensee; and that the allegations concerning the unawareness of plaintiff of being struck by balls driven into the spectators' seats and the assurance of safety given to plaintiff are conclusions of the pleader and not allegations of constitutive facts which are admitted by the motion to dismiss. In view of the conclusion we have reached concerning the insufficiency of the petition, it is not necessary to discuss or decide these contentions. For the purpose of this opinion we shall assume that plaintiff was a business invitee upon the premises of defendant and that the petition alleges facts and not merely conclusions of the pleader.
Defendant urges that the decision of this Court in Hudson v. Kansas City Baseball Club, 349 Mo. 1215, 164 S.W.2d 318, 142 A.L.R. 858, is decisive and controlling. We there said, 164 S.W.2d 318, loc. cit. 320:
In the Hudson case, plaintiff alleged that he was struck and injured by a foul ball while occupying a seat which was not protected by wire netting. He alleged that he intended to occupy a seat which was so protected and, because he had bought a reserved seat, was under the impression that he was seated behind the wire netting and his eyesight was not sufficiently acute to reveal the absence of protective netting before he was injured. The negligence charged was: failure to protect the place where plaintiff was seated with wire netting; offering for sale seats without notice to the public that some seats were protected and others were not protected by wire netting; offering for sale reserved seats, some of which were protected and others not protected, thus creating the impression that all reserved seats...
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