Douglass v. Missouri Cafeteria, Inc.

• Citation: 532 S.W.2d 811
• Decision Date: 16 December 1975
• Docket Number: No. 35939,35939
• Parties: Marion DOUGLASS and Napoleon Douglass, Plaintiffs-Appellants, v. MISSOURI CAFETERIA, INC., d/b/a Miss Hullings Cafeteria, Inc., Defendant-Respondent. . Louis District, Division Two
• Court: Court of Appeal of Missouri (US)

Page 811

532 S.W.2d 811

Marion DOUGLASS and Napoleon Douglass, Plaintiffs-Appellants, v. MISSOURI CAFETERIA, INC., d/b/a Miss Hullings Cafeteria, Inc., Defendant-Respondent.

No. 35939.

Missouri Court of Appeals, St. Louis District, Division Two.

Dec. 16, 1975.

Howard, Richardson & Edwards, Raymond Howard, Jr., St. Louis, for plaintiffs-appellants.

Dolgin, Juncker & Beilenson, Joseph J. Dolgin, Clayton, for defendant-respondent.

KELLY, Judge.

Marion and Napoleon Douglass, plaintiffs-appellants, sought damages against defendant for Mrs. Douglass' personal injuries sustained when she was on defendant's premises and for Mr. Douglass' loss of consortium and incidental monetary losses sustained as a direct result of his wife's injuries. The suit was instituted by the filing of plaintiffs' (as they shall hereinafter be referred to) petition on October 27, 1971, and this was superseded by a First Amended Petition filed on October 24, 1972. The gist of plaintiffs' cause of action is that while Mrs. Douglass was on the premises of the defendant on May 22, 1970, as a business invitee, and 'as plaintiff was descending the front stairs' she tripped over a piece of metal stripping located at the threshold of a doorway causing her to fall on the floor and 'down the steps' by reason of the negligence of the defendant, and that she thereby sustained injuries to her person and was caused to incur bills for medical treatment and hospitalization as well as loss of earnings. Plaintiff Marion Douglass sought $100,000.00 damages in Count I of her First Amended Petition and Napoleon Douglass $35,000.00 damages in Count II of his First Amended Petition. A jury trial was had and plaintiffs were awarded damages of $15,000.00 on Count I of their petition and $500.00 on Count II of same. Defendant filed a motion for new trial alleging as grounds therefor the following which are, for the purposes of clarity, numbered as they appeared in the motion for new trial, omitting those grounds not relevant to a decision in this case:

2) refusal of the trial court to permit defense counsel to use certain allegations in plaintiffs' First Amended Petition for the purposes of cross-examining Mrs. Douglass,

3) refusal of the trial court to admit into evidence plaintiffs' First Amended Petition for purposes of impeaching Mrs. Douglass' testimony concerning how the accident occurred and the extent of her injuries,

5) refusal of the trial court to strike all evidence of medical bills offered by the plaintiffs because there was no evidence that said bills were reasonable and necessary,

8) error in permitting a doctor, over objection, to read to the jury an x-ray report of a hospital contained in his files,

12) error in giving and reading to the jury MAI 4.01 on the grounds that it was not supported by the evidence,

16) error in refusing to permit the defendant to introduce into evidence and read to the jury excerpts from letters of plaintiffs' attorney re medical expenses and loss of earnings as admissions of the plaintiffs, and

22) misconduct on the part of two jurors who, during the course of the trial, made separate visits to the premises of the defendant to inspect the metal stripping alleged by the plaintiff Mrs. Douglass to be the cause of her fall and reporting to the jury by one of these jurors his findings in this respect during the jury's deliberations.

Defendant attached to this motion affidavits from each of the jurors in support of this ground number 22. An evidentiary hearing was conducted in support of the motion whereupon the two jurors who had visited the premises and viewed the metal strip over which plaintiff allegedly tripped, testified without objection.

In due time the trial court denied defendant's motion for judgment on Counts I and II but sustained its motion for new trial on all of the grounds aforementioned and set aside and vacated the judgment in favor of both plaintiffs. The plaintiffs filed their notice of appeal and this appeal followed. ¹

In this court the plaintiffs have briefed two contentions:

1. the trial judge did not err in denying the defendant the right to cross-examine the plaintiff, Mrs. Douglass, on her First Amended Petition nor in permitting defendant's counsel's request to read to the jury said petition for the reason that it was not abandoned;

2. the trial court did not err in admitting into evidence plaint...