Dovino v. General American Life Ins. Co.

• Decision Date: 02 May 1939
• Docket Number: No. 24549.,24549.
• Parties: DOVINO v. GENERAL AMERICAN LIFE INS. CO.
• Court: Missouri Court of Appeals

127 S.W.2d 732

DOVINO v. GENERAL AMERICAN LIFE INS. CO.

No. 24549.

St. Louis Court of Appeals. Missouri.

May 2, 1939.

Rehearing Denied May 16, 1939.

Appeal from St. Louis Circuit Court; Charles B. Williams, Judge.

"Not to be published in State Reports."

Suit by Ethel Dovino against the General American Life Insurance Company to recover for injuries sustained because of the alleged negligence of the defendant in making repairs in a building owned by it in which the plaintiff was employed by one of the tenants. From a judgment sustaining a motion for a new trial after a verdict for the plaintiff, the plaintiff appeals.

Affirmed.

John H. Nolde and Arnim C. Beste, both of St. Louis, for appellant.

Carter & Jones and Jas. E. Garstang, all of St. Louis, for respondent.

HOSTETTER, Presiding Judge.

This suit was brought in the circuit court of the city of St. Louis on November 14, 1935, and the amended petition (formal parts omitted) is as follows:

That defendant was the owner of a one-story building on Page Boulevard in said city, containing several store rooms, one of which, numbered 4649 Page Boulevard, was rented by James Lucratia, who used it as a tavern; that plaintiff was a waitress therein in the employ of said tenant, and that on May 30, 1935, while attending to her duties, stepped on a weak and insecure part of said tavern floor and was injured by breaking through and falling; that defendant corporation, through its agent, during the latter part of December, 1934, or during the month of January or February of 1935, the exact date of which the plaintiff does not know, undertook to repair said floor, and in so doing, negligently failed to exercise ordinary care to make said repairs in a reasonably prudent and careful manner and so as to leave said floor in a reasonably safe and secure condition, in that the defendant, in making said repairs, negligently failed to replace rotten, decayed and defective flooring, and instead negligently covered said rotten, decayed and defective flooring with old, rusty weak tin, and negligently failed to exercise ordinary care to nail, secure and fasten said tin in a firm, secure and sound condition, whereby, at the completion of said repairs, said floor was in a weak, insecure, dangerous and not reasonably safe condition; that defendant negligently assured said James Lucratia, his agents and employees, after said repairs were made, that the floor was safe and secure.

Then followed a description of plaintiff's injuries and a prayer for $7,000 as damages.

The answer was a general denial.

Upon a trial to a jury, the latter, on September 23, 1936, returned a verdict in favor of plaintiff for $2,000 upon which date a judgment was duly rendered.

Defendant in due time filed its motion for a new trial, containing many grounds of alleged errors, the seventh one of which reads as follows: "Because the court erred in refusing to give and read to the jury an instruction offered by defendant at the conclusion of all of the evidence and the entire case in the nature of a demurrer to the evidence, and the court erred in so refusing to give and read said instruction to the jury over and above the objection and exception of defendant to the court's action."

On November 9, 1936, the trial court sustained defendant's motion for a new trial on said seventh ground therein, as set out above.

The memorandum filed by the trial court reads as follows:

"The evidence was insufficient to warrant a submission of the case to the jury. There was no substantial evidence that Richard Jones, the alleged employee and agent of the defendant, had any authority, express or implied, to do the repair work. The evidence shows that Jones was employed as a janitor to fire the furnace, at a stipulated weekly salary. The work and employment of a janitor is to take care of the furnace, and without more, may not be reasonably held to include within its scope the authority and duty to keep the building in repair so as to bind and hold its owner in damages for negligence in repairing. Under the facts of this case as the court views them there can be but one reasonable conclusion upon that subject.

"But it is contended that the testimony of Richard Jones is sufficient to support a reasonable inference that authority was conferred upon him by the owner, through its representative, the Scott Realty Company, to do the repair work in question. Jones' testimony that he (Jones) was `maintenance man' and `supposed to take care of the place' and `that is what the janitor's job is', are bare conclusions, unrelated to any supporting facts, and cannot amount to proof of agency. Certainly the witness' designation of his position at and about the property and his own interpretation of his duties, without connecting facts, can be of no substantial value upon the question of agency. Other loose and vague statements in the evidence upon this subject do not help the situation. The evidence in proof of defendant's negligence does not rise to the dignity of even a `scintilla', and the Court committed error in not sustaining the demurrer to the evidence. Defendant's motion for a new trial should therefore be sustained."

Thereupon plaintiff duly perfected her appeal to this court.

After a careful reading of all the testimony we have reached the conclusion that the learned trial judge was justified in granting defendant a new trial, basing it on his failure to give the instruction mentioned in the seventh ground of defendant's motion for a new trial.

The facts shown by the testimony were substantially as follows:

Plaintiff was employed by Jim Lucratia, a tenant of the store numbered 4649 Page Boulevard, which was one of the stores in the building owned by defendant. She was a waitress, her duties being to serve drinks and sandwiches. About 1:30 on the morning of May 30, 1935, while she was starting to serve a tray, she walked behind the bar, and at the place where a piece of tin was nailed over the flooring, her heel went through the wood part and her toe pressed down on the tin. She fell and was injured. She didn't know where her employer Jim Lucratia, was, at the time of the trial; she tried to find out where he was, but could not do so, and heard that he went out of town.

At the time of the accident Geneva Coyner was also employed by Jim Lucratia in the same store, and had been so employed for some time previous to the date of the accident. Just prior to Christmas, or around the 18th or 19th of December, 1934, she saw Richard Jones, colored, whom she referred to as a general maintenance man, nail a piece of tin over the floor.

Paul Farris, plaintiff's brother, was also employed at the same tavern. He knew Richard Jones, and called him the general maintenance man of the property at 4649 Page avenue, which had other store rooms in it.

Oreon E. & R. G. Scott Realty Company collected the rents from the tenants of the property in question. Richard Jones, according to his testimony, was, for a time in 1933 up until May 15th of that year, employed by Oreon E. & R. G. Scott Realty Company. He was next employed by the said company about February 15, 1935. Payments were made to him by Oreon E. & R. G. Scott Realty Company on April 17, 1934, of $7.50, and again on February 15, 1935, in full from January 20th to February 15th, $12.50. Prior to his employment in January or February of 1935, Jones had been employed to fire the boiler or furnace of the building in question by a party named Williams, who operated a garage as a tenant of the defendant, and was so employed by Williams in December, 1934. Jones was a furnace fireman for years, and was paid by different parties in the neighborhood for firing furnaces, and also washed windows for Miss Beatrice, the hairdresser. While he was washing windows for Miss Beatrice, Mr. Doty (who was then employed by Oreon E. & R. G. Scott Realty Company) telephoned and employed him, at $15 a month, to fire the furnace at the building right under the store occupied by Miss Beatrice, which furnace served the stores in the building in question. Scott had him firing just the one furnace. Some time prior to the accident in question he saw a lady stumble on the place in the floor over a piece of tin that had been placed over a hole. He said, "We had called up before to fix the floor". When the lady stumbled over the tin which was lying loose on the floor, some time prior to the accident in question, about 3 o'clock in the morning, he did not call up, but nailed the piece of tin down to the floor.

After the conclusion of the testimony of Richard Jones, witness Geneva Coyner was recalled, and, on account of her having placed the date when the tin was nailed over the floor as before Christmas, the court would not permit her to testify as to another date of the occurrence.

This concluded plaintiff's evidence.

Joseph Laposa was the carpenter employed to do carpenter and repair work for Oreon E. & R. G. Scott Realty Company. He had put some glass in the windows of other stores, but had not repaired the floor of the store in question until after the accident.

Alfred F. Taylor, who was employed by Oreon E. & R. G. Scott Realty Company, testified that the company acquired the building in 1933, and the only repairs authorized were some structural repairs at the time the building was acquired.

Anna Mae West was an employee of Oreon E. & R. G. Scott Realty Company, having charge of the record as to repairs of the building in question. She had a record of any repairs to the store at 4649 Page avenue from November, 1933, to July 20, 1935. There were no repairs made to the building until May 29, 1935, when a bill was paid to Mr. Laposa for replacing two glasses broken in windows at 4649. The next repairs were made on June 12th, by Mr. Laposa, and were paid for on ...