Comparet v. Wm. H. Metz Co.

• Decision Date: 09 March 1937
• Docket Number: 43822.
• Parties: COMPARET v. WM. H. METZ CO.
• Court: Iowa Supreme Court

271 N.W. 847

222 Iowa 1328

COMPARET v. WM. H. METZ CO.

No. 43822.

Supreme Court of Iowa.

March 9, 1937

Appeal from District Court, Polk County; Joseph E. Meyer, Judge.

This is an action in damages resulting from personal injuries sustained by plaintiff as a result of falling over a mail sack in a post office substation at Des Moines, Iowa. Plaintiff appeals from a verdict and judgment of $150 rendered in her favor as being inadequate.

Affirmed.

Where plaintiff alleged injuries were caused her by negligence of defendant's employee in placing mail sack against doorway in lobby of post office substation, the burden was upon her to establish by a preponderance of the evidence that the sack was so placed by one of defendant's employees.

Bump Graeser & Bump, of Des Moines, for appellant.

Lehmann, Hurlburt & Hossfeld, of Des Moines, for appellee.

KINTZINGER, Justice.

On the afternoon of April 13, 1935, plaintiff entered the lobby of a substation of the Des Moines post office on Grand avenue, and proceeded to the stamp window to purchase stamps. This window was immediately adjacent to a doorway leading from the lobby to the rear part of the post office. After purchasing stamps she turned around to go to a money order window. In turning she stumbled against a mail sack standing as high as her waist against the adjacent doorway, and fell onto the floor as a result of which she claims to have received serious and painful injuries, permanently impairing the use of her legs. The case was submitted to a jury and a verdict of $150 was returned in her favor. The plaintiff, feeling the verdict inadequate, filed a motion for a new trial, which was overruled, and she appeals.

Plaintiff contends that the court erred (1) in failing to include in its instructions the damage resulting from the permanent injury and future impairment of the use of her legs; and (2) in failing to grant a new trial because of the inadequacy of the verdict.

Appellee contends that even though it be conceded that the instructions were erroneous as claimed, and even though the amount allowed for the injuries received was inadequate, the errors were not prejudicial because under the facts plaintiff was not entitled to a verdict in any amount, and that defendant's motion for a directed verdict should have been sustained upon the ground that plaintiff failed to establish by a preponderance of the evidence that the injury and damage alleged were in any manner caused by any employee of the defendant.

It is the settled rule of law in this state that if plaintiff has failed to establish the material allegations of her petition by a preponderance of the evidence, or if the trial court should have sustained defendant's motion for a directed verdict for such reason, then subsequent errors upon other grounds are not prejudicial. Alline v. City of Le Mars, 71 Iowa, 654, 33 N.W. 160; Blair Town Lot & Land Co. v. Hillis, 76 Iowa, 246, 41 N.W. 6; Spencer v. Taggart, 162 Iowa, 564, 144 N.W. 299; Brown v Hunt et al., 163 Iowa, 637, 145 N.W. 310; Mulroney Mfg. Co. v. Weeks, 185 Iowa, 714, 171 N.W. 36; Conway Bros. v. Iowa H. M. Ins. Ass'n, 190 Iowa, 1369, 181 N.W. 768; Dye Produce Co. v. Davis, 202 Iowa, 1008, 209 N.W. 744; Foley v. Mathias, 211 Iowa, 160, 233 N.W. 106.

In Blair Town Lot & Land Co. v. Hillis, 76 Iowa, 246, loc. cit. 249, 41 N.W. 6, 8, this court said: The " instruction was not correct. * * * But * * * that part of the charges * * * was without prejudice to the plaintiff. We say this because in our opinion the jury upon the undisputed facts could have found no other verdict than that they did find."

In Mulroney Mfg. Co. v. Weeks, 185 Iowa, 714, loc. cit. 717, 171 N.W. 36, 37, this court said, speaking through Justice Evans: " We think it clear, therefore, that the plaintiff was entitled to a directed verdict, though it did not ask for one. Having obtained its verdict from the jury, it may defend the same on the same grounds upon which it might have demanded a directed verdict. The fact that it was entitled to a directed verdict renders errors as to other issues nonprejudicial."

In Conway Bros. v. Iowa H. M. Ins. Ass'n, 190 Iowa, 1369, loc. cit. 1373, 181 N.W. 768, 770, this court said: " The trial court could have correctly sustained plaintiff's motion for a directed verdict on the evidence and issues made. This being true, subsequent errors in the record, if any, are not prejudicial and reversible."

In Dye Produce Co. v. Davis, 202 Iowa, 1008, loc. cit. 1017, 209 N.W. 744, 748, this court said: " While there was error in placing upon plaintiff a greater burden of proof than it was required * * * to carry, this will not entitle it to a reversal if, upon the record made, it must be said it was not in any event entitled to a verdict. If, upon the evidence, a verdict for the plaintiff could not be sustained, plaintiff could not be prejudiced by a verdict against it rendered under an erroneous instruction."

In Foley v. Mathias, 211 Iowa, 160, loc. cit. 163, 233 N.W. 106, 107, this court said: " Many errors are alleged upon this appeal * * * but it is the established rule in this state that, where a plaintiff is entitled to a directed verdict, though he did not ask for it, errors as to other issues are without prejudice. * * * As was said by this court in Brown v. Hunt et al., 163 Iowa, 637, 145 N.W. 310, 312:‘ * * * this court will not reverse a judgment because of errors in charging a jury; where on the whole record a different judgment or verdict could not have been sustained, is well settled." ’

If, therefore, under the facts in this case, plaintiff was not entitled to any verdict, then defendant's motion for a directed verdict should have been sustained. In such event, any errors in the court's instructions were not prejudicial. In order to determine whether or not the directed verdict for defendant should have been sustained, a brief consideration of the evidence is necessary.

Plaintiff claims that her injuries were caused by the negligence of defendant's employee in placing a mail sack against the doorway immediately adjacent to the window at which she was purchasing stamps. The burden was upon her to establish by a preponderance of the evidence that this sack was negligently placed in that position by one of defendant's employees. The only evidence tending to sustain her contention is that she received the injuries complained of between 3 and 4 o'clock in the afternoon on the day in question, and that one of defendant's employees left a mail sack in front of the door referred to on the same...