Devine v. Kroger Grocery & Baking Co.

• Decision Date: 05 May 1942
• Docket Number: No. 37106.,37106.
• Citation: 162 S.W.2d 813
• Parties: DOROTHY DEVINE v. KROGER GROCERY & BAKING COMPANY, Appellant.
• Court: Missouri Supreme Court

162 S.W.2d 813

DOROTHY DEVINE v. KROGER GROCERY & BAKING COMPANY, Appellant.

No. 37106.

Supreme Court of Missouri.

Division Two, May 5, 1942.

Rehearing Denied, June 17, 1942.

Appeal from Circuit Court of City of St. Louis. — Hon. David J. Murphy, Judge.

AFFIRMED.

Wayne Ely for appellant.

(1) The court erred in overruling Kroger's motion in arrest of judgment because said judgment is inconsistent, and is a complete nullity. (a) Plaintiff's petition only states a case upon the principle of respondeat superior. The jury verdict discharged Boemler, for whose negligence only plaintiff seeks to hold Kroger. No judgment can be based on such verdict. (b) The undisputed evidence discloses that Boemler had complete control and management over the Kroger store. He therefore owed a duty to customers of the store to maintain the floor and doorway thereof in a reasonably safe condition for their use, the nonperformance of which duty would be negligence. The jury found he was not negligent, and it necessarily follows that Kroger was not negligent. Orcutt v. Century Bldg. Co., 201 Mo. 424, 99 S.W. 1062, 8 L.R.A. (N.S.) 929; Stoutimore v. Atchison, T. & S.F. Ry. Co., 92 S.W. (2d) 658, 659; McGinnis v. Chicago, R.I. & P. Ry. Co., 98 S.W. 590, 594; Lambert v. Jones, 98 S.W. (2d) 752; Schneider v. Dubinsky Realty Co., 127 S.W. (2d) 691, 695; Guthrie v. Wenzlick Real Estate Co., 54 S.W. (2d) 801; Ruehling v. Pickwick-Greyhound Lines, Inc., 85 S.W. (2d) 602, 603; Wright v. Hannan & Everitt, Inc., 81 S.W. (2d) 303; Stephens v. D.M. Oberman Mfg. Co., 70 S.W. (2d) 899, 901; Stith v. Newberry Co., 79 S.W. (2d) 447; Stephens v. D.M. Oberman Mfg. Co., 79 S.W. (2d) 516, 517; Blasinay v. Wenzlick Real Estate Co., 138 S.W. (2d) 721; Wade v. Campbell, 211 Mo. App. 274, 243 S.W. 348. (2) The court erred in permitting plaintiff to introduce testimony that her left kidney was displaced and movable, and has to be held in position with a belt. (a) The petition contains no allegation that plaintiff's left kidney was displaced or otherwise injured. (b) There is no testimony that plaintiff's left kidney was displaced as a result of her fall down the steps at the Kroger store, and no testimony that the displacement of her kidney was a necessary result of such fall. Parkell v. Fitzporter, 256 S.W. 239; 5 Ency. Pl. & Prac., p. 719; State ex rel. v. Allen, 124 S.W. (2d) 1080; Walquist v. Kansas City Rys. Co., 237 S.W. 493; Connor v. Kansas City Rys. Co., 250 S.W. 574; Fink v. United Rys. Co., 219 S.W. 679; Murray v. De Luxe Motor Stages of Illinois, 133 S.W. 1074; Thompson v. St. Louis & Suburban Ry. Co., 86 S.W. 465; Arnold v. City of Maryville, 85 S.W. 107; Knaup v. Western Coal & Mining Co., 114 S.W. (2d) 969. (3) The court erred in permitting plaintiff's medical witnesses to give speculative, argumentative or contradictory testimony. (a) Dr. Gerwitz was permitted to speculate that plaintiff may have a stormy change of life; that she may have said she had a normal menstrual period, without meaning she did; that he didn't expect women to give accurate histories to hospital authorities; that he "figured" the intern or doctor at the hospital must have suspected plaintiff had resorted to medication or instrumentation to produce a menstrual flow. (b) Drs. Ozias and Berard were permitted to testify that plaintiff's left kidney could have been misplaced by a fall, when there was no evidence that it was, or that the displacement would be a necessary result of the fall. Masonic Home of Missouri v. Windsor, 92 S.W. (2d) 713; Ducoulombier v. Thompson, 124 S.W. (2d) 1105; Weaver v. Mobile & Ohio Railroad Co., 120 S.W. (2d) 1105; Whitsett v. Ransom, 79 Mo. 258; Jones v. St. L.-San F. Ry. Co., 287 Mo. 64, 228 S.W. 780; Garrett v. Greenwell, 92 Mo. 120, 4 S.W. (2d) 441; Sensenderfer v. Smith, 66 Mo. 80; White v. Amer. Life & Accident Ins. Co. of St. Louis, 90 S.W. (2d) 118; Massachusetts Protective Assn. v. Mouber, 110 Fed. (2d) 203; Smith v. Mo. Ins. Co., 60 S.W. (2d) 730; Steele v. Kansas City So. Ry. Co., 175 S.W. 177; Siegel v. M.-K.-T. Ry. Co., 119 S.W. (2d) 376; Stall v. First Natl. Bank of Independence, 132 S.W. (2d) 682; Massey-Harris Co. v. Rich, 122 S.W. (2d) 858; Swain v. Anders, 140 S.W. 730. (4) The court erred in giving Instruction 2, because it permitted the jury to allow damages for permanent injuries. (a) The only testimony from which the jury could have found that plaintiff was permanently injured was the testimony that her womb and right kidney were removed, and that her left kidney was displaced and fallen. (b) The undisputed testimony of plaintiff's medical witnesses affirmatively and conclusively establishes that plaintiff's right kidney was removed because of an infection, which was not caused by trauma or injury; that her womb was removed solely because of the removal of the right kidney, and not because of any injury, or because of any disease or condition superinduced by injury. (c) Aside from the removal of the right kidney and womb, the evidence fails to disclose any injury or condition of a permanent character except the movable condition of plaintiff's left kidney. The evidence as to the left kidney was erroneously admitted, because such evidence was not justified by the pleadings, and because it was speculative. There was no evidence that plaintiff's left kidney was displaced by reason of any injury received when she fell. Rucker v. Alton Ry. Co., 123 S.W. (2d) 24; Gandy v. St. L.-San F. Ry. Co., 44 S.W. (2d) 634; State ex rel. Central Coal & Coke Co. v. Ellison, 195 S.W. 722; Krelitz v. Calcaterra, 33 S.W. (2d) 909; Finer v. Nichols, 158 Mo. App. 539, 138 S.W. 889; State ex rel. v. Dickens, 95 S.W. (2d) 847; Oller v. Dixie Greyhound Lines, 51 S.W. (2d) 557; Porter v. St. Joseph Ry., L., H. & P. Co., 227 S.W. 913. (5) The court erred in permitting plaintiff's counsel to make improper remarks in his closing argument to the jury, and in overruling Kroger's objections thereto and Kroger's motion for a mistrial. Haynes v. Trenton, 108 Mo. 123, 133; Brown v. Hannibal & St. Joseph Ry. Co., 66 Mo. 588, 599; Levels et al. v. St. Louis & H. Ry. Co., 94 S.W. 275, 278, 279; Rytersky v. O'Brine, 70 S.W. (2d) 538; Domineck v. Western Coal & Mining Co., 164 S.W. 567; Barnes v. St. Joseph, 123 S.W. 541; Monroe v. Chicago & A. Ry. Co., 249 S.W. 644, 646. (6) The judgment is excessive and is the result of improper argument mentioned under Point (5).

Everett Hullverson for respondent; Orville Richardson of counsel.

(1) The judgment in favor of Boemler and against the Kroger Company was not inconsistent or contradictory. (a) There was no evidence that Boemler was under a duty to repair the defective floor. He was not even guilty of nonfeasance. Lambert v. Jones, 339 Mo. 677, 98 S.W. (2d) 752; Varas v. Stewart & Co., 223 Mo. App. 385, 17 S.W. (2d) 651; Eads v. Y.W.C.A., 325 Mo. 577, 29 S.W. (2d) 701. (b) There was no evidence that Boemler was in exclusive control of the store and therefore he was not liable to the public or plaintiff for misfeasance. Lambert v. Jones, 339 Mo. 677, 98 S.W. (2d) 752; Orcutt v. Century Building Co., 201 Mo. 424, 99 S.W. 1062, 8 L.R.A. (N.S.) 929; Ryan v. Standard Oil Co. of Indiana, 144 S.W. (2d) 170. (c) The jury could properly find that Woodworth or other servants of Kroger were in whole or in part responsible for the negligent condition and therefore an acquittal of Boemler would not nullify the verdict against Kroger. Stith v. Newberry & Sons, Inc., 336 Mo. 467, 79 S.W. (2d) 447; Lindman v. Kansas City, 308 Mo. 161, 271 S.W. 516; Ryan v. Standard Oil Co. of Indiana, 144 S.W. (2d) 170. (d) In any event Kroger and Boemler were under different legal duties, which duties were breached by different probative facts. Kroger's duty was separate, continuing and nondelegable. There was at least a jury issue as to the separate negligence of the two defendants. Stoutimore v. Atchison, T. & S.F. Ry. Co., 338 Mo. 463, 92 S.W. (2d) 658; Nimmo v. Perkinson Bros. Const. Co., 85 S.W. (2d) 98; Stith v. Newberry & Sons, Inc., 336 Mo. 467, 79 S.W. (2d) 447. (e) Kroger itself tried the case on a theory that it might be relieved of liability while Boemler was held. (f) Kroger's negligence was established as a matter of law by admissions of its own witnesses. (g) In any event, since there were three forms of verdict submitted to the jury, the case should not be reversed outright. Ruehling v. Pickwick-Greyhound Lines, 337 Mo. 196, 85 S.W. (2d) 602. (2) The court did not err in admitting testimony that plaintiff's left kidney had fallen and had to be supported by a belt. Such evidence was admissible under the petition charging "that plaintiff's abdomen and all the organs therein were severly mashed, crushed and bruised." (a) There was evidence that the kidneys were in the abdominal cavity and the charge in the petition was sufficiently broad to admit the evidence, especially in absence of motion to make more definite and certain. Price v. Metropolitan St. Ry. Co., 220 Mo. 435, 119 S.W. 932, 132 Am. St. Rep. 588; Dean v. Wabash Ry. Co., 229 Mo. 435, 129 S.W. 953; Keyes v. Chi., B. & Q. Ry. Co., 326 Mo. 236, 31 S.W. (2d) 50; Long v. Fulkerson, 228 Mo. App. 1230, 74 S.W. (2d) 879; Bales v. K.C. Pub. Serv. Co., 328 Mo. 171, 40 S.W. (2d) 665; Fuchs v. St. Louis Transit Co., 111 Mo. App. 574, 86 S.W. 458; Van De Vere v. Kansas City, 196 S.W. 785; Nitchman v. United Rys. Co., 203 S.W. 491; Malone v. K.C. Rys. Co., 232 S.W. 782; Swinehart v. K.C. Rys. Co., 233 S.W. 59; Gilchrist v. K.C. Rys. Co., 233 S.W. 177. (b) The evidence of injury being admissible, it was also proper to show the consequences of the injury. Lyons v. Metropolitan St. Ry. Co., 253 Mo. 143, 161 S.W. 726; Smith v. K.C. Rys. Co., 208 Mo. App. 139, 232 S.W. 261; Reynolds v. Metropolitan St. Ry. Co., 180 Mo. App. 138, 168 S.W. 221; Mayne v. K.C. Rys. Co., 287 Mo. 235, 229 S.W. 386; Bode v. Wells, 322 Mo. 386, 15 S.W. (2d) 335. (c) The above evidence being admissible, it was...