Atterbury v. Temple Stephens Co.

• Decision Date: 03 July 1944
• Docket Number: 38899
• Citation: 181 S.W.2d 659,353 Mo. 5
• Parties: John E. Atterbury, Appellant and Respondent, v. Temple Stephens Company, a Corporation, Appellant, and Newell Hawkins, Respondent
• Court: Missouri Supreme Court

181 S.W.2d 659

353 Mo. 5

John E. Atterbury, Appellant and Respondent, v. Temple Stephens Company, a Corporation, Appellant, and Newell Hawkins, Respondent

No. 38899

Supreme Court of Missouri

July 3, 1944

Appeal from Monroe Circuit Court; Hon. Branham Rendlen Judge.

Affirmed.

James P. Boyd for plaintiff-appellant, John E. Atterbury.

(1) If this court follows the following cases it will reverse and remand this cause for a new trial. The giving, by the trial court, of the forms of verdicts, referred to herein as 3rd and 4th, was in effect, and tantamount to, an instruction that they were authorized to make such finding and was apparently so understood by them and therefore misleading and prejudicial. Ruehling v. Pickwick-Greyhound Lines Inc., 85 S.W.2d 603; Cameron v. Howerton, 174 S.W.2d 206. (2) Upon the other hand if under the pleadings and evidence the court concludes there was evidence the jury would have been justified in finding that Nichols, the clerk under the evidence of defendant Hawkins, was negligent in not notifying plaintiff of the danger caused by the wire fencing being stretched across and in front of the door: that Nichols came out before plaintiff then under the cases below we contend this court should affirm the judgment as against defendant Temple Stephens Co. Stith v. Newberry Co., 79 S.W.2d 447; Landman v. Kansas City, 271 S.W. 516; Devine v. Kroger Grocery & Baking Co., 162 S.W.2d 813. (3) It may and likely will, be contended by defendant-appellant, that their instruction in the nature of a demurrer should have been given. We contend not. And in support of this we believe the cases, State ex rel. Elliott Department Store Co. v. Haid, 51 S.W.2d 1015; Asbury v. Fidelity Natl. Bank & Trust Co., 100 S.W.2d 946; Philips v. Montgomery Ward & Co., 107 S.W.2d 939, justify this statement.

W. W. Barnes, Rendlen & White, Moser, Marsalek & Dearing and Theo. J. Krauss for defendant-appellant, Temple Stephens Company.

(1) The motion in arrest of judgment filed by appellant Temple Stephens Company should have been sustained by the trial court because the jury, by its verdict in favor of defendant Newell Hawkins, exonerated said defendant of negligence, and as appellant Temple Stephens could be liable only under the doctrine of respondeat superior, the exoneration of the servant, Hawkins, ipso facto exonerated the master, Temple Stephens Company. McGinnis v. Chicago, R.I. & P. Ry. Co., 200 Mo. 347, 98 S.W. 590; Stephens v. D.M. Oberman Mfg. Co., 334 Mo. 1078, 70 S.W.2d 899; Wright v. Hannan & Everitt, Inc., 336 Mo. 732, 81 S.W.2d 303; Wade v. Campbell, 211 Mo.App. 274, 243 S.W. 248; Michely v. Miss. Valley Structural Steel Co., 221 Mo.App. 205, 299 S.W. 830; Oliver v. Morgan, 73 S.W.2d 993; State ex rel. Shell Petroleum Corp. v. Hostetter, 348 Mo. 841, 156 S.W.2d 673. (2) All of plaintiff's evidence tended to show that Newell Hawkins stretched the wire on the sidewalk and that he was the only employee of appellant Temple Stephens Company who knew anything about it and was in position to warn plaintiff of the wire. Plaintiff's theory of the case was limited solely to that issue. Plaintiff and his witnesses all testified that plaintiff came out of the store first and that Homer Nichols, another employee of appellant Temple Stephens Company, followed him out. There was no showing that Homer Nichols knew or could have known of the presence of the wire on the sidewalk in time to have warned plaintiff before he came into contact with it. Plaintiff is bound by his own testimony and the testimony of his witnesses tending to establish his theory of the case. Rodan v. St. Louis Transit Co., 207 Mo. 392; Cook v. St. Joseph Ry., L., H. & P. Co., 232 Mo.App. 313, 106 S.W.2d 38; Elkin v. St. Louis Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600; Rucker v. Alton Railroad Co., 343 Mo. 929, 123 S.W.2d 24; Draper v. Louisville & N.R. Co., 348 Mo. 886, 156 S.W.2d 626. (3) The jury, by its verdict, having absolved defendant Newell Hawkins of negligence, the judgment against appellant Temple Stephens Company should be reversed outright. Authorities supra, Point (1).

W. W. Barnes, Rendlen & White, Moser, Marsalek & Dearing and Theo. J. Krauss for defendant-respondent, Newell Hawkins.

(1) Plaintiff, having had the trial court give to the jury Instruction P-1, is in no position to complain of alleged error on the part of the court in submitting to the jury the forms of verdict authorizing the verdict which was returned by the jury in this case. Instruction P-1 having authorized a verdict in favor of plaintiff and against Temple Stephens Company and in favor of Newell Hawkins, the forms of verdict submitted by the trial court were in accord with plaintiff's own theory of his case and plaintiff cannot complain. Cameron v. Howerton, 174 S.W.2d 206; Ruehling v. Pickwick-Greyhound Lines, 337 Mo. 196, 85 S.W.2d 602; Slovensky v. O'Reilly, 233 S.W. 478; Monnig v. Easton Amusement Co., 27 S.W.2d 495; Huppert v. Weisgarber, 25 Mo.App. 95. (2) A party will not be heard to complain of alleged error, in which by his own conduct at the trial he joined or acquiesced; nor may he complain of self-invited error. Taylor v. Cleveland, C.C. & St. L. Ry. Co., 333 Mo. 650, 63 S.W.2d 69, certiorari denied Cleveland, C.C. & St. L. Ry. Co. v. Taylor, 54 S.Ct. 121, 290 U.S. 685, 78 L.Ed. 590; Brewer v. Silverstein, 64 S.W.2d 289; Sullivan v. Union Electric L. & P. Co., 56 S.W.2d 97; Crews v. Kansas City Pub. Serv. Co., 111 S.W.2d 54; Bowles v. Eisenmayer, 22 S.W.2d 884; State ex rel. Highway Comm. v. Williams, 51 S.W.2d 538; Bowman v. Moore, 167 S.W.2d 675; Herndon v. Robertson Construction Co., 59 S.W.2d 75; Wilkerson v. Mo. Pac. Railroad Co., 69 S.W.2d 299; Schell v. Ransom Coal & Grain Co., 79 S.W.2d 543. (3) The plaintiff is bound on appeal by the theory on which plaintiff tried the case below. Sinclair Refining Co. v. Wyatt, 347 Mo. 862, 149 S.W.2d 353; Benz v. Powell, 338 Mo. 1032, 93 S.W.2d 877; Sullivan v. Connecticut Mut. Life Ins. Co., 337 Mo. 1084, 88 S.W.2d 167; Rath v. Knight, 55 S.W.2d 682; Cain v. Humes-Deal Co., 329 Mo. 1107, 49 S.W.2d 90; Smith v. Kansas City Pub. Serv. Co., 328 Mo. 979, 43 S.W.2d 548; Scotten v. Metropolitan Life Ins. Co., 336 Mo. 724, 81 S.W.2d 313.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Action to recover $ 15,000 for personal injury. The jury returned a verdict for $ 2,000 against the corporate defendant, but found for Hawkins, the individual defendant. The corporate defendant appealed and plaintiff appealed from the judgment in favor of Hawkins. The appeals were allowed to the St. Louis Court of Appeals, but that court transferred the cause here for lack of jurisdiction. See Morton v. Southwestern Telegraph & Telephone Co. et al., 280 Mo. 360, 217 S.W. 831; Walsh v. Southwestern Bell Telephone Co. et al., 331 Mo. 118, 52 S.W.2d 839; Brown v. Reorganization Investment Co., 350 Mo. 407, 166 S.W.2d 476.

Temple Stephens Company, the corporate defendant, had a retail store in the City of Madison, Monroe County, Missouri, which store faced west on Main Street. Defendant Newell Hawkins, a young man, 27 years old at the time, was manager of the store. Plaintiff resided at nearby Holliday. Near the noon hour, June 2, 1941, plaintiff, with his two daughters, Elgelina and Mary Betty, drove to Madison to buy groceries at the corporate defendant's store. He and Elgelina went into the store; Mary Betty remained in the car parked in front of the store. While plaintiff was in the store, defendant Hawkins unrolled, on the concrete sidewalk in front of the store and along in front of the door at which plaintiff entered, some 40 or 50 feet of woven wire, one inch mesh, and four feet in width. When plaintiff came out of the store, shortly after he entered, he stepped in or on this wire, tripped, stumbled and fell, and received the injuries complained of.

Preliminary hypotheses omitted, plaintiff's instruction P-1 directed a verdict for him if the jury found:

"That Hawkins carelessly and negligently unrolled and stretched upon said sidewalk immediately in front of and adjacent to said west front door entrance and along the front of said store building, chicken wire fence of one inch mesh approximately 48 inches in width and unrolled on said sidewalk some 40 or 50 feet in length, if you so find he did, and if you further find from the evidence that said chicken wire fencing so stretched, obstructed and made the passage dangerous to persons passing out of said store by way of said west front door, if you so find, and that defendant corporation, by and through its agents, servants and employees, and especially defendant Hawkins knew of the danger, if any, or by the exercise of ordinary care could have known of such danger, if any, and if you further find and believe from the evidence that defendant corporation, its agents, servants, or employees, including defendant Newell Hawkins, failed and neglected to give to plaintiff any notice while he was in said store and before he started to leave said store that the agents, servants and employees had stretched chicken wire fencing along said sidewalk and in front of said west door, and if you further find and believe from the evidence that plaintiff, while in the exercise of ordinary care for his own safety and without any knowledge that said chicken wire fencing had been stretched along said sidewalk and across and in front of the entrance to said front door, if you so find, and while passing out of said door and out upon said sidewalk became entangled in said chicken wire fencing and causing plaintiff to trip and fall with such force and violence as to throw plaintiff across and upon said sidewalk and into and upon said Main Street if you so believe, and that plaintiff was...