Berberet v. Electric Park Amusement Co.

• Decision Date: 09 October 1925
• Docket Number: No. 24692.,24692.
• Citation: 276 S.W. 36
• Parties: BERBERET v. ELECTRIC PARK AMUSEMENT CO.
• Court: Missouri Supreme Court

276 S.W. 36

BERBERET v. ELECTRIC PARK AMUSEMENT CO.

No. 24692.

Supreme Court of Missouri, Division No. 1.

October 9, 1925.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Jennie Berberet against the Electric Park Amusement Company, a corporation. From a judgment for plaintiff, defendant appeals to Supreme Court. Cause transferred to Kansas City Court of Appeals.

Sebree, Jost & Sebree and Henry L. Jost, all of Kansas City, for appellant.

J. K. Cubbison and Wm. G. Holt, both of Kansas City, for respondent.

LINDSAY, C.

This is an action for personal injuries. At the time of the alleged occurrence, the defendant owned and operated an extensive amusement part in Kansas City, known as Electric Park, wherein were provided many devices for the amusement and entertainment of patrons of the park.

On the evening of July 30, 1921, the plaintiff, a woman of about 57 years, with her husband and their grandson, a boy of 9 years, and accompanied also by a Mrs. Crawford, visited the park, where they paid the customary entrance fee. Among the places within the park was a device consisting of a movable floor, supporting wooden horses, and ordinarily spoken of as a merry-go-round. They visited this, where the boy rode on the merry-go-round. Extending from this was a board walk which sloped downward, somewhat, to a concrete walk. While the plaintiff and the others were walking from the merry-go-round, along the incline of this board walk, and when close to where the board walk joined the concrete walk, the plaintiff fell, sustaining the injuries for which she sued. The character of the alleged defect in the walk and the manner in which she fell, as described in the petition, can best be stated later.

The plaintiff had a verdict for $2,500. The case is here on appeal upon the theory that certain constitutional questions are involved. Prior to the hearing, respondent filed a motion to dismiss the appeal on the ground that no constitutional question was involved. The motion was overruled. The nature of these questions can best be indicated by a brief outline of the course of events upon the trial. When the case was called for trial, counsel for defendant objected to the impaneling of a jury and to a trial, upon the ground that the petition failed to state facts sufficient to constitute a cause of action. The objection was overruled, a jury was impaneled, and counsel for plaintiff made his opening statement, at the close of which statement counsel for defendant moved for judgment for defendant upon the statement of counsel for plaintiff. This motion was overruled, and counsel for defendant made his opening statement to the jury. At the close of that statement counsel for plaintiff suggested that the statement for defendant indicated that Mr. Hill was an important witness in the case, and, a separation of the witnesses having been theretofore asked for and ordered, counsel for plaintiff insisted that Mr. Hill, being a witness, should retire. Counsel for defendant then said:

"Let the record show that Mr. Hill is associated with me as counsel for defendant, and then let the court rule."

Counsel also stated that he could not try the case as effectively, or with the same degree of justice to his client, with Mr. Hill absent from the counsel table. After some discussion between the court and counsel, and the statement by counsel for defendant that he would call Mr. Hill as a witness, the court ruled that Mr. Hill should retire from the court room. Counsel for defendant excepted to the ruling, on the ground that it deprived the defendant of the benefit of its counsel, and amounted to depriving it of a trial as guaranteed by the Twenty-second and Twenty-third sections of the Bill of Rights, of the Constitution of the United States. At the close of plaintiff's evidence defendant offered a demurrer to the evidence, which was overruled, and renewed its offer at the close of the whole case. After defendant's demurrer had been overruled, defendant offered its instruction C, to the effect that it was not charged in the case, nor was there any evidence tending to prove that defendant knew, or by the exercise of reasonable care and diligence could have ascertained and known, of the existence of the alleged defective condition of the inclined platform and floor that have been mentioned, and that in this state of the pleadings and the evidence it was the duty of the court to direct a verdict for defendant.

Pending disposition of the last named instruction, the court permitted plaintiff to amend her petition by inserting in the petition, after the allegations descriptive of the defect in the walk, the following additional averment:

"Which condition could, by the exercise of ordinary care, have been discovered by defendant."

The court refused the instruction asked for by defendant. Defendant thereupon requested the court to discharge the jury and continue the cause on the ground that the amendment had materially changed the cause of action set forth in plaintiff's petition; that defendant was not prepared to meet the same; and that the allowing of said amendment to be made violated defendant's constitutional guaranties under section 30, article 2, of the Constitution of Missouri, and the Fourteenth Amendment of the Constitution of the United States. This request was denied.

The specific ground upon which defendant claims the petition in its original form did not state a cause of action is that it failed to allege that the defective condition of the walk was one which defendant, by the exercise of ordinary care, might have known, and the essence of defendant's claim upon this phase is that by the amendment the petition was made to state a cause of action, where none had been stated before, and also that the court, by allowing the amendment, at that stage of the proceeding, and refusing a continuance, so far abused its discretion as to constitute a violation of the due process clause of the Constitution.

The petition alleged that defendant "had provided an inclined wooden sidewalk or approach to said merry-go-round, which said sidewalk or approach was constructed of wooden timber upon which wooden boards were placed; that said sidewalk approach was about six feet wide, and extended around said merry-go-round about half way, and said defendant company had left near the bottom of said incline loose, unfastened, and dangerous boards, which were liable to trip people going over same; that at about the hour of 8:30 p. m. the plaintiff, while descending the incline or approach from said merry-go-round, by reason of the unsafe and dangerous condition of said wooden approach, was tripped and thrown with great force, and received" certain described injuries.

The petition further on alleges that plaintiff "received her injuries by reason of careless and negligent acts of said defendant and its agents and servants in the failure of said defendant and its agents and servants to provide a safe approach to said merry-go-round, and said defendant was guilty of careless and negligent acts in permitting and leaving a board in said sidewalk in an unsafe and dangerous condition"; and further alleged "that said board, which caused the plaintiff to fall, was loose and unfastened, and was liable to move and swerve when stepped on, and defendant was guilty of further negligence in leaving an opening in the sidewalk, and that said board upon which plaintiff tripped had been loose and unfastened at the south end thereof, and was loose and unfastened at the time the plaintiff tripped and fell thereon."

The necessity for amending the petition, and the propriety of allowing its amendment, might be considered in connection with an inquiry whether...