Bello v. Stuever, 29993.

• Decision Date: 21 December 1931
• Docket Number: No. 29993.,29993.
• Citation: 44 S.W.2d 619
• Parties: BELLO v. STUEVER et al.
• Court: Missouri Supreme Court

44 S.W.2d 619

BELLO v. STUEVER et al.

No. 29993.

Supreme Court of Missouri, Division No. 1.

December 21, 1931.

Appeal from St. Louis Circuit Court; Erwin G. Ossing, Judge.

Action by Joseph Bello against Charles A. Stuever and others. From a judgment for defendants, plaintiff appeals.

Affirmed.

Hay & Flanagan, of St. Louis, for appellant.

Allen, Moser & Marsalek, of St. Louis, for respondents.

HYDE, C.

This is an action for personal injuries. Plaintiff's petition makes two charges of negligence, namely:

"1. That the defendants negligently failed to exercise ordinary care to furnish plaintiff with a reasonably safe place in which to work, in that they negligently caused, suffered and permitted the aforesaid stick of wood to lie on the floor of the room in which plaintiff was required to work, when they knew or by the exercise of ordinary care could have known of the presence of said stick of wood in time to have removed the same, and when they knew or by the exercise of ordinary care could have known that plaintiff might be apt to slip on said stick of wood and thereby fall and injure himself. (Italics ours.)

"2. That the defendants negligently failed to exercise ordinary care to furnish plaintiff with a reasonably safe place in which to work, in that they negligently failed to furnish sufficient light in the room in which plaintiff was required to work, when they knew or by the exercise of ordinary care could have known that on account of said room being dark plaintiff might be unable to see articles lying on the floor of said room and that he might thereby be caused to injure himself."

Plaintiff says in his brief that he "abandoned the assignment of negligence relative to poor light." Plaintiff asked only two instructions: One, on his first charge of negligence, on the theory that defendants were negligent "if they knew or by the exercise of ordinary care would have known of the presence of said sand and stick, if any, upon said floor and that plaintiff was apt to slip thereon and be injured"; and an instruction on the measure of damages. Failure to ask an instruction on the second charge would also be an abandonment of it. Shumate v. Wells, 320 Mo. 536, 9 S.W.(2d) 632; Hughes v. Mississippi River & Bonne Terre R. Co., 309 Mo. 560, 274 S. W. 703.

The facts, as shown by the evidence viewed in the light most favorable to plaintiff, were that plaintiff was in the employ of defendants who operated a business called the Highlands Fire Clay Company. Plaintiff worked in a room about 40 feet long and about the same width. There was a partition, running north and south through the center of the room, near which was a chute by a window. Plaintiff's work was to fill sacks with pulverized clay, at the chute; carry them to the west side of the room; and pile them against the west wall. Near the west wall there was a narrow gauge railway track upon which trucks were brought in by negroes, who worked in another part of the plant, and who loaded the sacks onto the trucks and took them away. The negroes put sticks under the wheels of the trucks, to hold them in place, while they were being loaded. Plaintiff testified, "Sometimes the negroes took the sticks from under the truck and threw them around." On the 21st day of June, 1926, plaintiff, who had been working at the plant for about five weeks, was carrying a sack of pulverized clay weighing about 100 pounds, from the chute to the west side of the room. When about one and a half feet from the pile, he stepped upon something on the floor, his foot slipped, and he fell backwards with the sack on his stomach and was injured. There was a stick, such as the negroes used under the wheels of the trucks, at the place where plaintiff fell. Plaintiff testified that there was two or three inches of sand on the floor in places; that the floor had not been cleaned for four or five days before he was injured; and that he had nothing to do with cleaning the floor. The only evidence, about a stick being on the floor, was plaintiff's own testimony that after he fell a stick, about 6 inches long and of a thickness of two fingers, was at the place where he fell. He said he did not see the stick before he fell. Plaintiff testified it had been raining and that "there was a terrible wind that day that blew dirt in people's eyes and we kept the door closed."

Defendants offered a demurrer to plaintiff's evidence at the close of plaintiff's evidence and again at the close of the whole case, both of which were overruled. Defendants' evidence was that plaintiff did not fall on the stick, but injured his back lifting the sack onto the pile. The jury found a verdict for defendants upon which judgment was entered. Plaintiff appeals from this judgment. This appeal was set for hearing on September 17, 1931, that being the ninth day of the September call of the April, 1931, term of this court. On August 10th, thirty-eight days before the day set for hearing, plaintiff's counsel acknowledged service of a motion to dismiss plaintiff's appeal (which was filed here the next day) on the ground that plaintiff's brief did not comply with rule 15 of this court "in that no assignments of error are made therein, and appellant does not, `under his points and authorities,' specifically point out any ruling of the trial court claimed to be erroneous." On September 14th, three days before the day set for hearing, plaintiff filed an "assignment of errors" and asked that it be accepted as a part of his brief. Plaintiff's assignment of errors filed September 14, 1931, are that the court erred in giving defendants' instructions 4, 6, 7, and 8, and in striking out a part of plaintiff's answers to two questions. The motion to dismiss was taken with the case.

Plaintiff's brief does not contain any formal assignment of errors. Neither does his points and authorities refer to any ruling of the trial court. They merely state abstract propositions of law for which authorities are cited. It is possible from the part of plaintiff's brief headed "Statement" and the part headed "Argument" to find a reference to at least some of the matters, concerning which he claims the trial court erred, in the assignment of errors filed September 14, 1931. Defendants' motion to dismiss was served on plaintiff's counsel more than a week before the time plaintiff was required by rule 15 to file his brief as appellant in this court, and no reason is given by him why he could not have filed his assignment of errors within the time he was required to file his brief instead of waiting until three days before the day set for hearing.

We would certainly be justified under our rules in dismissing plaintiff's appeal. Cox v. Orr, 322 Mo. 207, 14 S.W.(2d) 440, 441; Automatic Sprinkler Co. v. Stephens, 306 Mo. 518, 267 S. W. 888; Frick v. Millers' National Insurance Co., 279 Mo. 156, 213 S. W. 854. However, defendants' rights will not be affected, if we do not do so, because we find the judgment of the lower court should be affirmed. We will, therefore, as we did in Automatic Sprinkler Co. v. Stephens, 306 Mo. loc. cit. 526, 267 S. W. 888, 890, dispose of the case on the merits "without our ruling being considered a waiver of the foregoing requirements [of rule 15] as to assignments of error."

A careful consideration of plaintiff's evidence shows that plaintiff did not make a case for the jury. Since the case should not have been submitted to the jury, errors, if any, in instructing the jury on behalf of defendants need not be considered. Barr v. Missouri Pacific R. Co. (Mo. Sup.) 37 S.W.(2d) 927; Peetz Brothers Livery & Undertaking Co. v. Vahlkamp, 321 Mo. 287, 11 S.W.(2d) 26; Horigan Realty Co. v. Honan (Mo. Sup.) 275 S. W. 949; Phillips v. Pulitzer Publishing Co. (Mo. Sup.) 238 S. W. 127; Goodwin v. Ross (Mo. Sup.) 193 S. W. 573; Trainer v. Sphalerite Mining Co., 243 Mo. 359, 148 S. W. 70, Ann. Cas. 1913C, 949; Bradley v. Forbes Tea & Coffee Co., 213 Mo. 320, 111 S. W. 919; Mockowik v. Kansas City, St. J. & C. B. R. Co., 196 Mo. 550, 94 S. W. 256; Moore v. Lindell Ry. Co., 176 Mo. 528, 75 S. W. 672; Cass County v. Bank of Harrisonville, 157 Mo. 133, 57 S. W. 736. As was said in the Trainer Case, 243 Mo. loc. cit. 370, 148 S. W. 70, 72, Ann. Cas. 1913C, 949: "Instructions to the jury or the admission of testimony for defendant touches merely the way the case is put to the jury; hence, when an appealing plaintiff's case is challenged, as here, he must have made a case at the trial to put to the jury before he is heard to complain of the way it was put to them. In the practical administration of justice it is a plaintiff who has a case, not one who has none, who has a real grievance on bad advice to the jury or on lame proof by his adversary. The logic of the matter, then, is that, if on the facts of the record a court can say as a matter of law that the end reached at the trial was the only end that could be rightly reached, plaintiff cannot be injured (within the meaning of that word in the law) by improper testimony, or too favorable instructions for defendant. When well looked to, this doctrine accords with good sense and the intendment of our statutes; for one statute...