Blond v. Overesch

• Decision Date: 02 September 1975
• Docket Number: No. KCD,KCD
• Citation: 527 S.W.2d 663
• Parties: Barton S. BLOND and Anne Blond, Respondents-Appellants, v. Harry B. OVERESCH et al., Respondents, and Tenth and Main Corporation, Appellant. 26982.
• Court: Missouri Court of Appeals

Page 663

527 S.W.2d 663

Barton S. BLOND and Anne Blond, Respondents-Appellants, v. Harry B. OVERESCH et al., Respondents, and Tenth and Main Corporation, Appellant.

No. KCD 26982.

Missouri Court of Appeals, Kansas City District.

Sept. 2, 1975.

Donald L. Mason, Kansas City, for appellant, Tenth & Main Corp.

Warren E. Slagle and Richard F. Adams, Slagle & Bernard, Kansas City, for respondents-appellants.

John E. Redmond, Strubinger & Redmond, Kansas City, for respondent Adelman.

Roy A. Larson, Morris, Mitchell, Larson, King, Stamper & Bold, Kansas City, for respondents Abella and Overesch.

Before SOMERVILLE, P.J., PRITCHARD, C.J., and TURNAGE, J.

TURNAGE, Judge.

This appeal follows a jury verdict in favor of plaintiff Barton Blond (Blond) for $75,000 for personal injuries and for his wife Anne Blond for $15,000 for her loss of her husband's services and consortium. A judgment was entered on such verdict against Tenth and Main Corporation (Ten Main), and it appeals.

As a result of the decision of this court in State ex rel. Blond v. Stubbs, 485 S.W.2d 152 (Mo.App.1972), plaintiffs joined, in their suit against Ten Main, three physicians who allegedly treated Blond negligently for his injuries. The jury verdict and judgment were in favor of the physicians and Blond has appealed from that judgment.

On March 31, 1969, Blond was an associate in the law firm of Lathrop, Righter, Gordon and Parker, with offices in the Ten Main Center Building located in downtown Kansas City. On that same day, according to plaintiff's evidence, he was leaving the Ten Main Center Building to go to the Jackson County Courthouse. He stated the Ten Main Building had double action doors leading from the lobby to Main Street. These doors would swing either out or in according to the way they were pushed by the person using them. There were two sets of doors, one set being located at the lobby and the outer set being located at Main Street with a six-foot vestibule separating the two sets of doors. Each set consisted of two doors, with one hinged on the north side of the doorway and one hinged on the south side.

Blond testified as he started to leave the lobby the inner set of doors were propped open. He stated he was not in any particular hurry and walked normally toward the outer set of doors carrying his brief case. He stated as he drew near the door on his right and was about to exit onto Main Street, the door suddenly swung inward. He said the door struck him on the left knee and caused him to go completely through the glass and to fall on the Main Street side of the door. The evidence showed the door had polished plate glass which shattered on impact. After falling on the outside of the door, Blond had several cuts about his face and hands, but the more serious was a deep laceration on the calf of his left leg. Blond stated he could see the bone and knew the cut was obviously deep. Blond was bleeding profusely and in a very few minutes a policeman from the Kansas City Police Department arrived and applied a tourniquet. An ambulance was called and Blond was taken to the emergency room at Menorah Hospital. After having his wounds sutured at the hospital, Blond was taken home. The injuries and disabilities suffered by Blond and his subsequent medical treatment will be detailed later in connection with Ten Main's contention that a remittitur should be ordered.

Plaintiffs' evidence with reference to the operation of the doors where Blond was injured showed the doors were equipped with closers which were supposed to return the doors to a closed position after they were pushed either toward the outside or toward the inside and to maintain them in a closed position until the next person would push the door. Plaintiffs' evidence was that such doors did not stay in a closed position but would frequently stand partially open anywhere from a few inches to almost a foot. Two employees of Ten Main, one of whom was the Ten Main Center Building manager, stated they knew the doors stood in this open position. They stated the reason was an imbalance between the air pressure on the inside and the outside of the building. A consulting engineer called by Blond stated the closers were not working properly because they did not hold the doors in a closed position. He stated the doors should act in a sure and deliberate manner to return the door to a closed position after it was open and to maintain it at that position. He stated neither air pressure from the inside nor wind from the outside, short of near tornado velocity, should cause the door to open inward without someone pushing. He stated the door closers were malfunctioning by reason of the doors standing open.

One of Ten Main's employees conceded the door closers were not operating properly. He agreed the purpose of the closers was to bring the doors back to a closed position after a person passed through and to maintain them in that position until their next use. He stated no effort had been made to correct the situation to make the door closers work properly. The building superintendent stated there was no adjustment that could be made on the door closers to make them stay in the closed position except when in actual use. The inference was the closers would have to be replaced to have a proper operation of the doors. He stated the closers were the ones originally installed when the building was built in 1968.

Blond testified he had seen the doors on previous occasions blow both toward the outside and inside. He also stated he had seen the doors swing two or three times after someone would pass through. Dan Dibble, another attorney in the Lathrop office, also stated he had seen the doors blow back and forth, sometimes toward the inside and sometimes toward the outside.

The law firm had moved into this building in September, 1968, and in January, 1969, William Stapleton, another attorney in this office, had written to the president of Ten Main complaining about the doors on the Tenth Street side blowing open and on one occasion coming open at a time when it very nearly struck Stapleton.

Ten Main introduced evidence from a number of witnesses to show that at the time of his injuries, Blond was walking toward the doors in question with his head turned to one side so that he was not looking at the doors. These witnesses testified the doors at the time Blond approached were in their normal closed position and that without looking, Blond simply walked through the door and fell to the outside.

The court gave two verdict directing instructions against Ten Main which submitted Blond's theory of the accident. These instructions were identical except for the fact one was with reference to Mr. Blond and one was in reference to Mrs. Blond. Such instructions were MAI 22.05. The only deviation was the insertion in the first paragraph of the condition, as described by Blond, as to what caused his injuries. Ten Main submitted appropriate instructions tendering the issue of Blond's contributory negligence.

Ten Main first contends the verdict directing instructions given by Blond and his wife were erroneous. The instruction given on behalf of Blond is as follows:

'Instruction No. 3

'Your verdict must be for plaintiff Barton Blond and against defendant Tenth and Main Corporation if you believe:

'First, there was a condition existing in the door closers that allowed said doors to swing improperly or failed to maintain tempered or safety glass in the doorway, and as a result said doorway was not reasonably safe; and

'Second, defendant knew, or by using reasonable care should have known, of this condition; and

'Third, defendant failed to use ordinary care to make the doorway reasonably safe; and

'Fourth, as a direct result of such failure plaintiff was injured;

'Unless you believe plaintiff is not entitled to recover by reason of Instruction No. 5.

'The term 'ordinary care' as used in these instructions means that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.'

Instruction Number 4 was identical except for using the name of Anne Blond.

Ten Main's attack on these instructions distills into the fact the instructions do not require the jury to find the door suddenly swung inward. Ten Main says this was plaintiffs' theory and this was the ultimate fact which was to be submitted to the jury. Ten Main further argues the instruction does not confine the improper swinging of the doors to a sudden inward swing, and would, therefore, allow the jury to consider the evidence of outward swinging of the doors in order to find liability, contrary to plaintiffs' own theory.

The answer to Ten Main's argument lies in the definition of the ultimate facts involved in this case, contrasted with the evidentiary details which are to be excluded from the instructions. Rule 70.01 requires only ultimate facts be submitted in instructions. Here MAI 22.05 was used but such instruction in the first paragraph contains the direction to 'here describe condition which caused the injury, such as 'a hole in the stairway ". Thus the instruction should contain a description of the condition which caused the injury and not evidentiary details concerning the condition or the occurrences.

It is apparent the condition which caused the injuries was the malfunction of the door closers. This would be true whether the injury occurred when the doors swung out or in, since it was this condition in the construction of the doors which allowed the doors to swing when they were not actually in use. A description of the door swinging in or out would be a detail which would merely comment on the underlying condition which gave rise to the swinging of the door. The purpose of MAI is to submit only ultimate facts and to strip away the evidentiary details therefrom. Zipp v. Gasen's Drug Stores, Inc., 449 S.W.2d 612, 617(3--4) (Mo.1970).

Furthermore the instruction should hypothesize...