Bertke v. Hoffman

• Citation: 50 S.W.2d 107,330 Mo. 584
• Decision Date: 27 May 1932
• Docket Number: 29994
• Parties: Marguerite Bertke v. Max Hoffman, Appellant
• Court: United States State Supreme Court of Missouri

50 S.W.2d 107

330 Mo. 584

Marguerite Bertke v. Max Hoffman, Appellant

No. 29994

Supreme Court of Missouri

May 27, 1932

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

Affirmed.

Greensfelder & Grand and Forrest Hemker for appellant.

(1) There is a total failure of proof in that the evidence does not show that precise piece of ridge roll, the defective condition of which defendant had notice, struck and injured the plaintiff. Rice v. White (Mo.), 239 S.W. 141. (2) Plaintiff's Instruction 1 is erroneous in the following respects: (a) It is broader than the pleadings and the evidence. State ex rel. Central Coal & Coke Co. v Ellison, 270 Mo. 645, 195 S.W. 722; Eads v. Galt Tel. Co. (Mo. App.), 199 S.W. 710; Reynolds v. Al G. Barnes Amusement Co., 214 Mo.App. 391, 253 S.W. 140; Muser v. Kansas City (Mo. App.), 249 S.W. 681. (b) It fails to require the jury to find that the failure to repair was the proximate cause of plaintiff's injury. State ex rel. Long v. Ellison, 272 Mo. 571, 199 S.W. 984; Dunsmore v. Hartmann (Mo.), 256 S.W. 1031; Falder v. B. Nugent & Bro. Dry Goods Co. (Mo. App.), 251 S.W. 138. (3) The evidence proffered was competent because: (a) It is the duty of an injured person to exercise ordinary care in the selection of a physician for the treatment of injuries and this duty extends to the selection of a physician of good repute. Scholl v. Grayson, 147 Mo.App. 652; Glasgow v. Met. St. Ry. Co., 191 Mo. 370; Elliott v. Kansas City, 174 Mo. 565. (b) The latitude of cross-examination for purpose of impeachment may extend to collateral matters. 28 R. C. L. p. 607, par. 197.

Gillespie & Dempsey and Joseph C. Mulroy for respondent.

(1) Appellant is in no position to complain of the failure of the trial court to sustain a demurrer to the evidence, because appellant's abstract shows that it does not contain all the evidence. Harrison v. Pounds, 190 Mo. 349, 88 S.W. 713; O'Malley v. Heman Constr. Co., 255 Mo. 386, 164 S.W. 565; Southern Surety Co. v. York, 218 Mo.App. 629, 267 S.W. 44; Thomas v. Land, 30 S.W.2d 1035; Stowell v. Dickson (Mo. App.), 177 S.W. 1080; Epstein v. Hammerslough Clo. Co., 67 Mo.App. 221; Shelley v. Ozark Pipe Line Corp. (Mo. App.), 247 S.W. 472; Davis v. Vories, 141 Mo. 234, 42 S.W. 707. (2) Plaintiff's Instruction 1 was correct. Ruggeri v. Mitchell Clay Mfg. Co., 232 Mo. 737, 15 S.W.2d 775. (3) If there were any doubt about plaintiff's Instuction No. 1, it is removed by defendant's Instructions Nos. 5, 6, and 7. Rogles v. United Rys. Co. (Mo.), 232 S.W. 93; Logan v. Met. St. Ry. Co., 183 Mo. 582, 82 S.W. 126; Cornovski v. Transit Co., 207 Mo. 263, 106 S.W. 51. (4) The court did not err in excluding evidence offered: (a) That plaintiff was negligent in not selecting a physician of good repute. Scholl v. Grayson, 147 Mo.App. 652, 127 S.W. 415; Elliott v. Kansas City, 174 Mo. 554, 74 S.W. 617. (b) As to alleged false statements of witness Shore in his application for license to practice medicine. State ex rel. Horton v. Clark, 320 Mo. 1190, 9 S.W.2d 635; Asadorian v. Sayman (Mo. App.), 282 S.W. 507; Cantrell v. Davidson, 180 Mo.App. 410, 168 S.W. 271; State v. Horn, 83 Mo.App. 47.

OPINION

Atwood, J.

Plaintiff brought an action in the Circuit Court of the City of St. Louis for personal injuries, and went to trial on a second amended petition alleging, in substance, that defendant owned and had the maintenance and control of a building on the northeast corner of Whittier Street and Enright Avenue in the city of St. Louis; that the sidewalks adjacent thereto were open and public, for the use of pedestrians; that on September 24, 1922, a piece of ridge roll fell from the roof of said building, striking plaintiff while she was walking along a sidewalk on which said building abutted, inflicting the injuries set out in her petition; that on January 17, 1922, defendant deeded, through others, this property to his wife, without consideration, for the purpose of concealing his ownership, and that prior to this time, a part of the ridge roll of the roof thereof was in a loose, insecure, and defective condition, and that defendant knew, or by the exercise of ordinary care could have known this; that defendant was negligent in failing to repair and in maintaining said building in said dangerous condition, and that said condition constituted a nuisance.

Defendant's answer was a general denial. Plaintiff obtained a judgment for $ 10,000, from which defendant appealed.

Appellant's first point is that the trial court erred in refusing to give defendant's demurrer to the evidence. Appellant's abstract of the record purports to give in about sixteen pages, chiefly in narrative form, "all the evidence introduced in the entire case," but it plainly shows that certain exhibits received in evidence have been omitted therefrom and even states that evidence was omitted therefrom because not "pertinent to the points raised on this appeal." It is for the court and not for appellant to determine whether the evidence is pertinent. We adhere to our holding in Harrison v. Pounds, 190 Mo. 349, 351, 88 S.W. 713, that "it is the settled rule of law in this court that, where we are asked to pass upon a demurrer to the evidence or as to whether there is any evidence to establish a fact, the appealing party must bring all the evidence before this court; otherwise, we will not disturb the finding of the trial court." [See also, Davis v. Vories, 141 Mo. 234, 241, 42 S.W. 707; and O'Malley v. Construction Co., 255 Mo. 386, 392, 164 S.W. 565.]

Appellant also insists that instruction number 1, given at plaintiff's request, is broader than the pleadings and the evidence and therefore erroneous. This instruction is as follows:

"If you find and believe from the evidence that at all times mentioned in the evidence Enright Avenue was a public street in the city of St. Louis, and that the sidewalk on the east side of Whittier Street and just north of Morgan Street was a public sidewalk of said city, and that plaintiff was walking along said sidewalk on the 24th day of September, 1922, and was exercising ordinary care for her own safety, and that a piece of the ridge roll of a building on the northeast corner of Whittier Street and Enright Avenue fell from said building and struck plaintiff and injured her, and that said piece of ridge roll was on the said 24th day of September, 1922, loose and insecure, and that it had been in such condition for a sufficient length of time prior to said 24th day of September, 1922, for the defendant, by the exercise of ordinary care, to have known of and repaired the same before the 24th day of September, 1922, and if you further find that defendant, by the exercise of ordinary care, could have discovered the condition of said ridge roll, if you find it was in the condition aforesaid, in time, by the exercise of ordinary care, to have repaired the same before plaintiff's injury, if any, but that defendant carelessly and negligently failed to do so, and that thereby plaintiff was injured, and if you further find that on the said 24th day of September, 1922, defendant was the owner of and had the management and control of the said house at the northeast corner of Enright Avenue and Whittier Street, you will find a verdict for plaintiff and against defendant."

Plaintiff's petition alleged that "the extreme top of the roof of...