Boyle v. Neisner Bros., Inc.

• Decision Date: 05 November 1935
• Docket Number: No. 23357.,23357.
• Citation: 87 S.W.2d 227
• Parties: ANNIE BOYLE, RESPONDENT, v. NEISNER BROTHERS, INC., APPELLANT.
• Court: Missouri Court of Appeals

87 S.W.2d 227

ANNIE BOYLE, RESPONDENT, v. NEISNER BROTHERS, INC., APPELLANT.

No. 23357.

St. Louis Court of Appeals. Missouri.

Opinion filed November 5, 1935.

Motion for rehearing overruled November 19, 1935.

Appeal from Circuit Court of City of St. Louis, Missouri. — Hon. Frank C. O'Malley, Judge.

AFFIRMED.

Charles A. Lich and William S. Connor for respondent.

(1) The action of the court in denying defendant's motion to remove the case to the Federal Court was proper: (a) Because no notice was given as required by the Federal Statutes. Sec. 72, Title 28, Mason's U.S. Code; Wanner v. Bessinger & Co., 210 Fed. 96; Vadner v. Vadner, 259 Fed. 614; Miller v. Tele. Co., 279 Fed. 806; Tinker v. Bd. of Supervisors, 292 Fed. 863; C.B. & Q.R.R. v. Willard, 220 U.S. 413. (b) Because an involuntary nonsuit having been taken by the plaintiff, the case did not become removable. State ex rel. v. Miller (Mo.), 241 S.W. 920; Am. Car. & Fdy. Co. v. Kettelhake, 236 U.S. 311; Great Northern R.R. v. Alexander, 246 U.S. 275 (l.c. 282). (c) Because the Federal Court having superior jurisdiction has reviewed the action of the circuit court and has affirmed same and remanded the cause to the State court and that this ruling is conclusive. C.B. & Q.R.R. v. Willard, 220 U.S. 413. (2) The court properly overruled defendant Neisner Brothers' demurrer to the evidence at the close of all of the evidence. Pearson v. City, 55 S.W. l.c. 489; Roper v. Wadleigh, 219 S.W. 982; Shouse v. Dubinsky, 38 S.W. (2d) 531; 20 R.C.L. 381, 382, 433, 399; Holroyd v. Sheridan, 65 N.Y.S. 422 (53 A.D. 14) (Affd. 166 N.Y. 634); Brown v. City, 178 Mich. 641; Chambers v. Assn., 111 Va. 254 (63 S.E. 980); Winkler v. Railroad Co., 126 N.C. 370 (35 S.E. 621); Mosher v. Vincent, 39 Iowa, 607; Hyde v. Middlesex Co., 68 Mass. 267; Adams v. Beach, 6 Hill 271; Langsdale v. Bouton, 12 Ind. 467; Cool v. Rohrbuck, 21 S.W. (2d) 919; Rose v. Gunn Fruit Co., 211 S.W. 85; Schnitzer v. Powder (Mo. App.) 160 S.W. 282. (3) The court properly gave and read to the jury plaintiff's instruction No. 1. 20 R.C.L. 381; Schnitzer v. Powder Co. (Mo. App.), 160 S.W. 282. (4) The court properly denied defendant's instruction No. 8. 20 R.C.L. 381; Schnitzer v. Powder Co. (Mo. App.), 160 S.W. 282.

Wayne Ely and Tom Ely, Jr. for appellant.

(1) The petition for removal of this case to the United States District Court should have been allowed, and it was error to refuse it. (a) The plaintiff was a citizen and resident of Missouri. At the conclusion of her case the court gave a demurrer as to the only resident defendants in the case, leaving as the sole defendant this appellant, which is a resident of New York State. Complete diversity of citizenship then existing, and the requisite jurisdictional amount being involved, the case then became removable for the first time, and as the petition, supported by a good and sufficient bond, was immediately presented to the court, it should have been allowed and the case should have been removed. Powers v. C. & O. Ry. Co., 169 U.S. 92, 42 L. Ed. 673; Great Northern Ry. Co. v. Alexander, 246 U.S. 275, l.c. 282, ___ L. Ed. ___; Rodgers v. Gaines Bros. Co. (Mo. App.), 295 S.W. 492; American Car & Foundry Co. v. Kettelhake, 236 U.S. 311, 59 L. Ed. 594; U.S.C.A., Title 28, sec. 81, note 64, p. 39. (b) When the court sustained and gave the demurrer as to the Seibels, the only resident defendants in the case, the plaintiff failed to save an exception. Therefore, she was precluded from taking an involuntary nonsuit, and her failure in this respect amounted to a voluntary dismissal as to said defendants. State ex rel. v. Falkenhainer (Mo. Sup.), 296 S.W. 386; Majors v. Ozark Power & Water Co., 205 Mo. App. 337, 222 S.W. 501; Reed v. Colp, 213 Mo. 577, 112 S.W. 255; Tyon v. Wabash Ry. Co., 207 Mo. App. 322, 232 S.W. 786. (c) Upon the voluntary dismissal as to the resident defendants, the right of removal attached for the first time, and the remaining nonresident defendant was entitled to then avail itself of said right. Powers v. C. & O. Ry. Co., 169 U.S. 92, 42 L. Ed. 673; Northern Pacific R. Co. v. Austin, 135 U.S. 315, 34 L. Ed. 218; Kansas City, etc., Ry. Co. v. Herman, 187 U.S. 63, 47 L. Ed. 76; Alabama Great So. Ry. Co. v. Thompson, 200 U.S. 206, 50 L. Ed. 441; American Car & Foundry Co. v. Kettelhake, 236 U.S. 311, 59 L. Ed. 594; Rodgers v. Gaines Bros. Co. (Mo. App.), 295 S.W. 492. (2) Appellant's demurrer, offered at the close of plaintiff's case, should have been given, and it was error to refuse it. (a) There was no evidence tending to show any negligence on the part of defendant. (b) There was no evidence tending to establish plaintiff's claim that the maintenance of the door constituted a nuisance. The plaintiff pleaded specific negligence, and specific facts which she claimed constituted a nuisance. Therefore, it was incumbent upon her to prove those facts — or some of them — and, having failed to do so, she failed to make a case for the jury and the court committed error in refusing and overruling the demurrer. Sexton v. Metropolitan Ry. Co., 149 S.W., l.c. 25; Weltmer v. Bishop, 171 Mo. 110, 71 S.W. 167; Barr v. Nafziger Baking Co., 41 S.W. (2d) 559; Kibble v. Railway, 285 Mo. 603, 227 S.W. 42; Fahner v. Brooklyn Heights R. Co. (N.Y.), 86 App. Div. 488; Smith v. Johnson, 219 Mass. 142; Dolan v. Callender, McAustin & Troup Co., 26 R.I. 198; Pardington v. Abraham (N.Y.), 93 App. Div. 359, aff. 183 N.Y. 553; Graff v. Philadelphia R.R. Co., 161 Pa. St. 230, 23 L.R.A. 606; Whitthorne v. Swan, 203 Calif. 206, 58 A.L.R. 129; Whitehead v. Southern Bell Tel. & Tel. Co., 37 Ga. App. 775, 141 S.E. 922; State ex rel. Lusk v. Ellison, 274 Mo. 463, 196 S.W. 1088; Amer. Brewing Co. v. Talbot, 141 Mo. 674; Wecker v. Grafeman-McIntosh et al. (Mo. Sup.), 31 S.W. (2d) 974; Holt v. S.W.M.E. Ry. Co., 84 Mo. App. 443; Majors v. Ozark Power & Water Co., 205 Mo. App. 337, 222 S.W. 501; Christy v. Hughes, 24 Mo. App. 275; Rice v. White (Mo. Sup.), 239 S.W. 149; Near v. St. L. & S.F. Ry. Co., 261 Mo. 80, 168 S.W. 1186; Milliken v. Thyson, 202 Mo. 637, 100 S.W. 604; Smith v. Mo. Pac. Ry. Co., 113 Mo. 70, 20 S.W. 896; Hawk v. McLeod Lbr. Co., 116 Mo. 121, 65 S.W. 1022; Stanley v. Union Depot R. Co., 114 Mo. 606, 21 S.W. 832. (3) After plaintiff elected to stand on the theory that the maintenance of the door constituted a nuisance, the court should have declared as a matter of law that said door was not a nuisance, and failure to do so constituted error. (a) All the evidence on the subject conclusively established that the door, in and of itself, was not inherently dangerous, and therefore it did not constitute a nuisance. (b) Plaintiff having failed to show that the door was not inherently dangerous, and having shown in her own case that it was not a nuisance, the court should have so declared as a matter of law. Schnitzer v. Excelsior Powder Mfg. Co. (Mo. App.), 160 S.W. 282. (4) The demurrer requested by defendant at the close of the whole case should have been given, and the court erred in refusing it. (a) The evidence adduced by defendant in nowise aided or enlarged upon plaintiff's evidence in such way as to help plaintiff's case, and, as plaintiff failed to make a case for the jury, the demurrer requested at the conclusion of all the evidence should have been given. Sexton v. Metropolitan Ry. Co., 149 S.W., l.c. 25; Weltmer v. Bishop, 171 Mo. 110, 71 S.W. 167; Barr v. Nafziger Baking Co., 41 S.W. (2d) 559; Kibble v. Railway, 285 Mo. 603, 227 S.W. 42; Fahner v. Brooklyn Heights R. Co. (N.Y.), 86 App. Div. 488; Smith v. Johnson, 219 Mass. 142; Dolan v. Callender, McAustin & Troup Co., 26 R.I. 198; Pardington v. Abraham (N.Y.), 93 App. Div. 359, aff. 183 N.Y. 553; Graff v. Philadelphia R.R. Co., 161 Pa. St. 230, 23 L.R.A. 606; Whitthorne v. Swan, 203 Calif. 206, 58 A.L.R. 129; Whitehead v. Southern Bell Tel. & Tel. Co., 37 Ga. App. 775, 141 S.E. 922; State ex rel. Lusk v. Ellison, 274 Mo. 463, 196 S.W. 1088; Amer. Brewing Co. v. Talbot, 141 Mo. 674; Wecker v. Grafeman-McIntosh et al. (Mo. Sup.), 31 S.W. (2d) 974; Holt v. S.W.M.E. Ry. Co., 84 Mo. App. 443; Majors v. Ozark Power & Water Co., 205 Mo. App. 337, 222 S.W. 501; Christy v. Hughes, 24 Mo. App. 275; Rice v. White (Mo. Sup.), 239 S.W. 149; Near v. St. L. & S.F. Ry. Co., 261 Mo. 80, 168 S.W. 1186; Milliken v. Thyson, 202 Mo. 637, 100 S.W. 604; Smith v. Mo. Pac. Ry. Co., 113 Mo. 70, 20 S.W. 896; Hawk v. McLeod Lbr. Co., 116 Mo. 121, 65 S.W. 1022; Stanley v. Union Depot R. Co., 114 Mo. 606, 21 S.W. 832. (5) Instruction 1, given for plaintiff, was erroneous and should have been refused. Instruction 1 told the jury that if they found that "the plaintiff was walking along the sidewalk on said Irving avenue at said place, and that while so doing she was struck with force and violence by the opening of said door, and as a direct result thereof she was injured, then your verdict will be for the plaintiff and against the defendant, Neisner Brothers, Incorporated." (a) The instruction is clearly erroneous and amounts to a peremptory instruction to find for the plaintiff. (b) This instruction completely ignores defendant's theory of the case that the plaintiff's injury was caused solely by the negligence of Frank Williams in suddenly and violently opening the door upon the sidewalk. (c) It also omits the important element of proximate cause, and does not require the jury to find that plaintiff's injuries proximately resulted from the maintenance of the door. (d) Under the direction of instruction 1 the defendant was made an insurer of all persons using the sidewalk at the place where the door was, and required defendant to guarantee that under any and all circumstances no one on the sidewalk would be injured by the opening of the door. (e) Instruction 1 is also in conflict with instruction 5, given for defendant, and which correctly instructed the jury that defendant was not an insurer; that a property owner has a...