Cooper v. Finke

Decision Date10 February 1964
Docket NumberNo. 2,No. 49973,49973,2
PartiesCarl M. COOPER, a Minor, by His Next Friend, Barbara J. Cooper, His Mother, Appellant, v. Charles FINKE, d/b/a Finke Monument Works, Respondent
CourtMissouri Supreme Court

Hungate & Grewach, William L. Hungate and P. J. Grewach, Troy, Niedner, Niedner & Moerschel, St. Charles, for appellant.

Alexander & Robertson, L. A. Robertson and Ernest E. Baker, St. Louis, B. Richards Creech, St. Charles, for respondent.

STORCKMAN, Presiding Judge.

This is an appeal from a summary judgment rendered in favor of the defendant in a personal injury action seeking damages in the sum of $50,000 on account of the alleged negligence of the defendant in the maintenance of a display of tombstones, monuments and grave markers in an open yard, one of which fell on the plaintiff and injured him. The plaintiff was fourteen years of age at the time he was injured; he sued by his mother as next friend.

The defendant's motion for summary judgment, or in the alternative, to dismiss plaintiff's petition, after stating in substance the contents of the petition, further alleges:

'3. As shown by plaintiff's deposition taken on the 4th day of October 1962, pages 3 to 52 inclusive, and also from plaintiff's deposition taken on November 21, 1962, pages 3 to 16 inclusive, together with defendant's exhibits A and B, plaintiff is 14 years old, a first year student at Buchanan High School located in Troy, Missouri, and he sustained his alleged injury about 8:00 to 8:30 PM when it was dark. That plaintiff and his younger brother left the Southern Air Restaurant after finishing their meal, telling his mother he was going to sit in the automobile parked outside and wait outside of said restaurant for his mother and the other members of his family to come out to the car. Plaintiff and his brother played around the cars parked on the parking lot of the Southern Air Restaurant, and then crossed a public street to this defendant's display yard at a time when defendant's place of business was closed, and began playing around the monuments by climbing on and over them, and plaintiff then began rocking a tall monument back and forth until it fell over on him.

'4. For grounds of this motion this defendant states that there is no genuine issue as to any material fact, and that this defendant is entitled to a judgment as a matter of law because plaintiff was a trespasser at the time of sustaining his alleged injuries, and for the further reason that plaintiff's petition fails to allege facts sufficient to state a cause of action against this defendant, and this defendant relies on the pleadings filed herein and the several depositions taken on behalf of the defendant, as well as defendant's exhibits A and B, and also upon the depositions taken at the request of plaintiff's attorneys and filed of record.' The prayer of the motion was for a summary judgment against the plaintiff and in favor of the defendant in accordance with Civil Rule 74.04, V.A.M.R.

One of the attorneys for the plaintiff filed an affidavit in opposition to defendant's motion for summary judgment in which the affiant denied that the defendant was entitled to a summary judgment, asserted facts substantially as alleged in plaintiff's petition and concluded that there was a genuine issue as to material facts and that no grounds existed justifying the entry of a summary judgment for the defendant.

The plaintiff's petition alleges in substance that defendant operates a business selling tombstones, monuments and grave markers in Wentzville, and in furtherance of said business displays tombstones, monuments and grave markers outdoors on a lot which is unfenced and which adjoins a highly traveled public street; that the monuments and grave markers are solid stone and in some cases very heavy; that the monuments on display are placed on temporary stads without being cemented to, bolted to or permanently attached thereto; that the bottom surfaces of the tombstones and the top surface of the temporary stands are irregular and unsmooth and projections on said surfaces which cause the tombstones, monuments and grave markers to be unsteady and easily rocked and swayed and tilted back and forth; that for several years prior to April 24, 1962, the above-described condition regarding the tombstones, grave markers and monuments continued to exist and children entered the yard and were attracted to and played among the tombstones, monuments and grave markers and rocked and swayed and titled the aforesaid tombstones, monuments and grave markers, and defendant knew thereof for a number of years; that defendant knew of the unsteady condition of the tombstones and monuments displayed in the yard and knew that it involved an unreasonable risk of serious bodily injury to the children playing among the tombstones and monuments; that on April 24, 1962, plaintiff entered the above-described display yard of defendant and began to rock to tall, heavy monument back and forth and it fell over on plaintiff, causing his injury.

The defendant's first pleading was a motion to dismiss plaintiff's petition for failure to state a cause of action. This motion was withdrawn and the defendant then filed an answer which admitted the ownership and operation of the business, denied or put the plaintiff on proof of all other allegations, and affirmatively pleaded contributory negligence. Thereafter, the cause was set for hearing but before the trial date arrived the defendant filed his motion for summary judgment or, in the alternative, to dismiss. The substance of the motion is above set out. On January 7, 1963, the motion for summary judgment was presented, submitted, and taken under advisement; on January 8, 1963, it was sustained and judgment was rendered for the defendant. The court's ruling was incorporated in the following memorandum: 'Defendant's motion for summary judgment now having been duly considered, the Court finds from the plaintiff's pleadings and depositions that the defendant is entitled to judgment as a matter of law, and his motion for summary judgment is granted. It is therefore ordered and adjudged that plaintiff take nothing by his petition, and that the defendant stand discharged with his costs. Counsel notified. (In reaching this decision, the Court has particularly relied on the cases of Patterson v. Gibson, Mo., 287 S.W.2d 853; Baker v. Praver, Mo., 361 S.W.2d 667, and those cited in the annotation of 28 A.L.R.2d 220).'

Discovery depositions taken by both parties have been forwarded to this court. On October 4, 1962, the defendant took the depositions of the plaintiff Carl M. Cooper, his brother Steve Cooper, and his mother Barbara Jean Cooper. On November 21, 1962, the defendant further examined the plaintiff and also took the depositions of his sister Linda Louise Cooper and his aunt Betty Lee Mills. These two sets of depositions, however, were not filed in the Circuit Court of St. Charles County until January 9, 1963, which was the day after the circuit court sustained the defendant's motion for summary judgment and entered judgment against the plaintiff. Civil Rule 74.04(c) relating to summary judgment procedures provides that: 'Judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.' Italics added. Counsel for the defendant in his brief and oral argument properly concedes that the depositional testimony of the plaintiff and the other witnesses taken on October 4 and November 21, 1962, cannot be relied on to support the judgment because the depositions were not on file when the motion for summary judgment was considered and decided. These are the depositions referred to in paragraph 3 of the ...

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