Cooper v. Finke, No. 49973

CourtUnited States State Supreme Court of Missouri
Writing for the CourtSTORCKMAN
Citation376 S.W.2d 225
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
Docket NumberNo. 2,No. 49973
Decision Date10 February 1964

Page 225

376 S.W.2d 225
Carl M. COOPER, a Minor, by His Next Friend, Barbara J.
Cooper, His Mother, Appellant,
v.
Charles FINKE, d/b/a Finke Monument Works, Respondent.
No. 49973.
Supreme Court of Missouri, Division No. 2.
Feb. 10, 1964.
Rehearing Denied and Opinion Modified March 9, 1964.

Page 226

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

Page 227

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,...

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26 practice notes
  • Pagan v. City of Kennett, No. 8661
    • United States
    • Court of Appeal of Missouri (US)
    • April 2, 1968
    ...an extreme and drastic remedy and have warned that great care should be exercised in utilizing the procedure (e.g., Cooper v. Finke, Mo., 376 S.W.2d 225, 229(3); Anderson v. Steurer, Mo., 391 S.W.2d 839, 842(2); Maddock v. Lewis, supra, 386 S.W.2d at 408; E. O. Dorsch Elec. Co. v. Plaza Con......
  • ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., MID-AMERICA
    • United States
    • United States State Supreme Court of Missouri
    • April 20, 1993
    ...most favorable to the party against whom judgment was entered. Zafft v. Eli Lilly, 676 S.W.2d 241, 244 (Mo. banc 1984); Cooper v. Finke, 376 S.W.2d 225, 228 (Mo.1964). Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-m......
  • Ganaway v. Shelter Mut. Ins. Co., No. 16198
    • United States
    • Court of Appeal of Missouri (US)
    • July 30, 1990
    ...56 are persuasive in construing and applying Rule 74.04. Elliott v. Harris, 423 S.W.2d 831, 835 (Mo. banc 1968); Cooper v. Finke, 376 S.W.2d 225, 228 (Mo.1964). We also bear in mind that in Zumwalt, 360 Mo. at 370, 228 S.W.2d at 754, our Supreme Court held that "bad faith" is a state of min......
  • Citizens State Bank of Nevada v. Wales, No. 9053
    • United States
    • Court of Appeal of Missouri (US)
    • July 13, 1971
    ...408, certiorari denied 381 U.S. 929, 85 S.Ct. 1569, 14 L.Ed.2d 688; Anderson v. Steurer, Mo., 391 S.W.2d 839, 842; Cooper v. Finke, Mo., 376 S.W.2d 225, 9 Actually, defendant's primary complaint seems to have been that he allegedly was not apprised of the property exempt under §§ 513.440 an......
  • Request a trial to view additional results
40 cases
  • Pagan v. City of Kennett, No. 8661
    • United States
    • Court of Appeal of Missouri (US)
    • April 2, 1968
    ...an extreme and drastic remedy and have warned that great care should be exercised in utilizing the procedure (e.g., Cooper v. Finke, Mo., 376 S.W.2d 225, 229(3); Anderson v. Steurer, Mo., 391 S.W.2d 839, 842(2); Maddock v. Lewis, supra, 386 S.W.2d at 408; E. O. Dorsch Elec. Co. v. Plaza Con......
  • ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., MID-AMERICA
    • United States
    • United States State Supreme Court of Missouri
    • April 20, 1993
    ...most favorable to the party against whom judgment was entered. Zafft v. Eli Lilly, 676 S.W.2d 241, 244 (Mo. banc 1984); Cooper v. Finke, 376 S.W.2d 225, 228 (Mo.1964). Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-m......
  • Ganaway v. Shelter Mut. Ins. Co., No. 16198
    • United States
    • Court of Appeal of Missouri (US)
    • July 30, 1990
    ...56 are persuasive in construing and applying Rule 74.04. Elliott v. Harris, 423 S.W.2d 831, 835 (Mo. banc 1968); Cooper v. Finke, 376 S.W.2d 225, 228 (Mo.1964). We also bear in mind that in Zumwalt, 360 Mo. at 370, 228 S.W.2d at 754, our Supreme Court held that "bad faith" is a state of min......
  • Citizens State Bank of Nevada v. Wales, No. 9053
    • United States
    • Court of Appeal of Missouri (US)
    • July 13, 1971
    ...408, certiorari denied 381 U.S. 929, 85 S.Ct. 1569, 14 L.Ed.2d 688; Anderson v. Steurer, Mo., 391 S.W.2d 839, 842; Cooper v. Finke, Mo., 376 S.W.2d 225, 9 Actually, defendant's primary complaint seems to have been that he allegedly was not apprised of the property exempt under §§ 513.440 an......
  • Request a trial to view additional results

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