Brophy v. Clisaris
| Decision Date | 21 May 1963 |
| Docket Number | No. 31262,31262 |
| Citation | 368 S.W.2d 553 |
| Parties | Darlene BROPHY, Plaintiff-Respondent, v. Nick CLISARIS, d/b/a Nick Carter's Surf 'N Sirloin, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Murphy & Roche, Byron A. Roche, St. Louis, for defendant-appellant.
Eaker, Dempsey, Heath, Lloyd E. Eaker, Clayton, for plaintiff-respondent.
DOERNER, Commissioner.
This is an action for damages for personal injuries resulting from a fall. In her petition plaintiff named as defendants Pan-American Realty Corporation and Nick Clisaris, d/b/a Nick Carter's Surf 'N Sirloin, but at the close of her case dismissed as to Pan-American, without prejudice. Verdict and judgment below was for plaintiff for $5000, from which defendant Clisaris has appealed.
Plaintiff's fall occurred in the ballroom of the Forest Park Hotel, in St. Louis, on December 31, 1957. The hotel building was owned by Pan-American, which by a written instrument (not introduced in evidence) had leased certain rooms to defendant Clisaris, including the ballroom. Defendant also operated a cocktail lounge named the Surf 'N Sirloin in other parts of the leased premises, and in addition carried on a catering business. An organization named the French Club, Society de Lafayette, arranged with defendant's catering manager to hold its New Year's Eve Party in the ballroom. The arrangements made provided for the use of the ballroom by the French Club, and a buffet supper to be served by defendant's catering service. A former member of the French Club, Gustav A. Schmidt, invited Herman Haenel to the party, and Haenel, in turn, invited plaintiff to accompany him.
It appears from the plaintiff's evidence that plaintiff, Haenel and Schmidt arrived at the hotel, apparently somewhere around 10:00 P.M. They had one drink apiece in the cocktail lounge, and then proceeded to the ballroom. Their table was situated against the west wall, towards the south end of the room. Sometime after they arrived food for the supper was carried into the ballroom from an adjacent kitchen by defendant's four waiters and placed on tables located along the east wall. The guests were served buffet style, and carried their own plates about the room.
Plaintiff testified that after reaching the ballroom she danced a couple of times, consumed part of one highball, and ate some food. Thereafter she left her table with the intention of going to the restroom, located outside of the ballroom. Plaintiff walked towards the doorway to the ballroom, which was situated in the northeast part of the room. According to plaintiff, Schmidt left their table at the same time she did and accompanied her partway across the room, but then stopped to talk to someone and she proceeded on alone. When she reached a point 8 to 12 feet south of the doorway her foot started to skid, '* * * it was like you were on ice * * *' and she fell to the floor. In an effort to break her fall she thrust out her hands. She stated that after her fall she did not notice anything on the floor. Two men who were nearby assisted her to her feet and seated her in a chair in the hallway just outside of the ballroom. Schmidt appeared a couple of seconds after she was seated and immediately went for Haenel. When Haenel arrived he drove her to St. John's Hospital, where she was given emergency treatment. The next day x-rays taken at St. Mary's Hospital revealed a Colles fracture of the left wrist, which was reduced and a cast applied.
Schmidt's testimony differed somewhat from that of plaintiff's in that he stated that he did not leave the table with plaintiff nor walk partway with her towards the door. According to Schmidt, plaintiff was still sitting or standing at their table when he left to go to the lavatory. On his way out of the ballroom he slipped at a place about 10 to 12 feet diagonally south of the ballroom door, and upon looking to see what had caused him to slip observed spots of moisture on the floor, spread out over an area two feet in diameter. They were about five to seven feet from the table with the food on it. He spoke to a lady from the French Club about it, but not with any one connected with the hotel. He proceeded on to the lavatory, and upon coming out, saw plaintiff sitting in a chair in the hallway, with people standing around her, and learned that she had fallen. He immediately reentered the ballroom to get Haenel, and on his way again looked at the place where he had previously seen the spots and slipped. He saw a wet place--moisture, dampness--which did not look the same as it had before. Schmidt stated that approximately 10 minutes elapsed from the time he slipped until he returned from the lavatory and saw plaintiff seated in the chair in the corridor.
Haenel testified that Schmidt came to him in the ballroom and said, '* * * 'She just fell, come on out.'' He went to the corridor, saw plaintiff sitting in the chair, and hustled her off to the hospital. On the way to the hallway he '* * * slipped at the same spot.' Haenel could not remember where he was when plaintiff left the table to go to the restroom, and said that he didn't know when she left. He testified that about 10 to 15 minutes before he went to the hallway he saw a porter mopping the floor of the ballroom at a point a few feet inside the door. Subsequently he stated, And later, On cross-examination Haenel testified that he knew the man was a porter because, 'He had a white coat on, and he was a colored man.'
Plaintiff read into evidence, as admissions against interest, certain portions of the deposition of the defendant taken prior to the trial. Such portions included testimony as to the defendant's lease from Pan-American, and the arrangements made by his catering manager, Harry Mazer, with the French Society for the use of the ballroom and the food. They also included the following:
Plaintiff was also permitted, over the objection of defendant, to read that part of defendant's deposition to the effect that it was defendant's responsibility to keep the floor of the ballroom clean while the party was in progress.
Defendant's only witness was one John Noce, who testified that at the time of the occurrence he was bell captain of the Forest Park Hotel. On the night in question, however, he was in civilian clothes and was on the security watch, to discover any fires or quell any disturbances. He was in and out of the ballroom 10 to 12 times that night, and was in the room when plaintiff fell. According to Noce, plaintiff fell on the dance floor, towards the south end of the room, and not near the door. He hadn't noticed her before she fell, and didn't know whether she had been dancing. Others reached plaintiff before he could, and seated her in a chair in the hallway. He offered to take plaintiff to the hospital in a cab. He smelled the odor of alcohol about plaintiff. Noce also testified he saw Haenel, who became abusive; and that Haenel's speech was slurred and he was staggering. Asked whether he had seen anything on the floor near the exit door he answered that he had seen nothing but dust, and had not noticed any grease spots or water on it.
Defendant's primary point on appeal is that plaintiff did not make a submissible case and that the court erred in overruling his motion for a directed verdict at the close of the whole case. No contention is made that the evidence failed to show a foreign substance on the floor, nor that plaintiff slipped and fell as the result thereof. What defendant does assert is that the plaintiff failed to prove either actual or constructive notice on the part of defendant of the foreign substance on the floor prior to plaintiff's fall. As a host of cases declare, in determining whether a plaintiff made a submissible case we must consider the...
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