Bohler v. National Food Stores, Inc.

• Decision Date: 08 April 1968
• Docket Number: No. 2,No. 53070,53070,2
• Citation: 425 S.W.2d 956
• Court: Missouri Supreme Court
• Parties: Esther BOHLER and Robert Bohler, Appellants, v. NATIONAL FOOD STORES, INC., Herbert F. Lewis, Henry L. Lewis, Susan S. Lewis, his wife, Marlin A. Lewis and Barbara Lewis, his wife, Respondents

Page 956

425 S.W.2d 956

Esther BOHLER and Robert Bohler, Appellants, v. NATIONAL FOOD STORES, INC., Herbert F. Lewis, Henry L Lewis, Susan S. Lewis, his wife, Marlin A. Lewis and Barbara Lewis, his wife, Respondents.

No. 53070.

Supreme Court of Missouri, Division No. 2.

April 8, 1968.

Sherman Landau and Anthony Canzoneri, St. Louis, for appellants.

Israel Treiman, Gary S. Heifetz, Shifrin, Treiman, Schermer & Susman, St. Louis, for defendant-respondent, National Food Stores, Inc.

M. E. Stokes, F. Douglas O'Leary, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondents Herbert F. Lewis, Henry L. Lewis, Susan S. Lewis, Marlin A. Lewis and Barbara Lewis.

PRITCHARD, Commissioner.

Appellant Esther Bohler, on her claim for personal injuries occasioned by a fall upon the entrance pavement and sidewalk of a shopping center, had a jury verdict and ensuing judgment against her. The verdict and judgment of appellant Robert Bohler on his claim of loss of his wife's services occasioned by her injuries were likewise against him. The claims for damages were $35,000 each.

Reversible error is contended by appellants by reason of the giving by the court of Instruction No. 8, submitting the proposition that the primary duty to keep the exterior portions of the premises (sidewalk and parking lot where Mrs. Bohler fell) was upon lessors (respondents Lewises), and such duty was not upon the lessee under the lease (respondent, National Food Stores, Inc.). It is said under Point I that the prejudicial error in this instruction is the incorporation by reference of the lease 'because it concerned a matter not in issue in this case.' Under Point II, it is contended that the court erroneously gave six converse instructions to offset appellants' four verdict-directing instructions contrary to M.A.I. 29.01: 'Defendant may give only ONE converse for each verdict directing instruction.' By Point III, appellants contend that the trial court erred in excluding testimony concerning the apparent health of appellant Robert Bohler (who did not appear and testify) because that allowed respondents' counsel to comment unfavorably upon his failure to testify.

On Friday, April 2, 1965, about 9:30 a.m., Mrs. Bohler went shopping with her husband at National's store. Mr. Bohler left their automobile about 10 or 12 cars away from the store entrance, and walked upgrade toward the front entrance. The day was dry and Mrs. Bohler was watching where she was stepping as she walked. When she was on her way, walking with no difficulty, she either kicked her foot or her toe or heel caught in something and threw her. On cross-examination she testified that there were 'bad places in it from the parking ground to the sidewalk--I guess you'd call that a sidewalk--and my foot must have hit one of those bad places because it is quite a bit there broken, broken, whatever you call that, concrete.' The broken part was on the concrete. 'Well, you walk up from the parking lot to it; the sidewalk is higher than what the parking lot is and it is bad in there.' In some places it was a couple of inches higher and in some it was level. Mrs. Bohler knew it was there at the time she tripped over it, and having gone to the store every week she knew of concrete broken out all along the walk for about a year. The bad spots were in the sidewalk; she had seen them and always tried to step over, but this time her foot must have hit and threw her. The point where she tripped was right at the sidewalk where it was broken--all along from the parking lot to the sidewalk it was broken. When she fell she was lying completely on the concrete entrance. Mrs. Bohler punched a hole in Lewises' Exhibit A, a photograph, which was then encircled in green, as the place on the concrete upon which she fell. She placed an 'X' on the exhibit (near the edge of the concrete, but on the pavement) where she believed she tripped. This exhibit shows the concrete to be some distance higher than the adjoining asphalt, as does also Exhibit B. Mrs. Bohler visited the store a year after the fall, and testified that the area was then the same as it had been and as shown in the exhibits. Plaintiffs' Exhibits Nos. 8, 9 and 10 show the same entrance area to the store, but are focused some distance to the right of where Mrs. Bohler indicated that she tripped and fell. Nevertheless, those exhibits, taken shortly after the fall, show in more detail the edge of the sidewalk, with chips of concrete out and higher than the adjoining asphalt pavement, which is shown to have cracks in it.

The evidence was sufficient to justify a finding by the jury that there was a defect in the pavement and sidewalk which had existed for a sufficient length of time (a year under Mrs. Bohler's testimony) for respondents to have corrected it or, having knowledge, to have been under duty to warn of the defect. As the photographs show, the sidewalk projected upward above the asphalt a sufficient distance to have caused Mrs. Bohler to catch her toe or heel, as she testified, and...