Elgin v. Kroger Grocery & Baking Co.

• Decision Date: 10 November 1947
• Docket Number: 40233
• Citation: 206 S.W.2d 501,357 Mo. 19
• Parties: Robert Lee Elgin v. Kroger Grocery & Baking Company, a Corporation, and Joseph M. Holtgrave, Defendants, Kroger Grocery & Baking Company, a Corporation, Appellant
• Court: Missouri Supreme Court

206 S.W.2d 501

357 Mo. 19

Robert Lee Elgin v. Kroger Grocery & Baking Company, a Corporation, and Joseph M. Holtgrave, Defendants, Kroger Grocery & Baking Company, a Corporation, Appellant

No. 40233

Supreme Court of Missouri

November 10, 1947

Rehearing Denied December 8, 1947.

Appeal from Circuit Court of City of St. Louis; Hon. William H Killoren, Judge.

Affirmed.

Wayne Ely and Robert C. Ely for appellant.

(1) Plaintiff's evidence, in order to establish that an employee of defendant Kroger Company laid the plate in question, piled one inference upon another, and this method of proof is not allowed by law. Swearingen v. Wabash R. Co., 120 S.W. 773; Hamilton v. Kansas City S. Ry. Co., 157 S.W. 622; Bollinger v. St. Louis-S.F. Ry. Co., 67 S.W.2d 985; Harding v. Federal Life Ins. Co., 34 S.W.2d 198; Atherton v. Railway Mail Assn., 221 S.W. 752. (2) The evidence is insufficient to sustain a finding that a Kroger employee laid the plate. In arriving at such a conclusion the jury would have to guess and speculate. Shane v. Lowden, 106 S.W.2d 956; Pietraschke v. Pollnow, 147 S.W.2d 167; Muesenfechter v. St. Louis Car Co., 139 S.W.2d 1102; Anton v. St. Louis Pub. Service Co., 71 S.W.2d 702. (3) Plaintiff's petition states a case on the principle of respondeat superior. The evidence discloses that the doctrine of respondeat superior applies, and that the Kroger Company could not be liable except through the negligence of Holtgrave. The jury verdict discharged Holtgrave, thereby removing the only foundation upon which to impute negligence to Kroger. No judgment can be based on such verdict. McGinnis v. Chicago, R.I. & P. Ry. Co., 200 Mo. 347, 98 S.W. 590; Stith v. J.J. Newberry Co., 336 Mo. 407, 79 S.W.2d 447; Ruehling v. Pickwick Greyhound Lines, 337 Mo. 196, 95 S.W.2d 602; Stoutimore v. Atchison, T. & S.F. Ry. Co., 338 Mo. 463, 92 S.W.2d 658. (4) The evidence discloses that plaintiff was guilty of contributory negligence as a matter of law. State ex rel. Kansas City Sou. Ry. Co. v. Shain, 105 S.W.2d 915; Gray v. Union Electric L. & P. Co., 282 S.W. 490; Moseley v. Sum, 130 S.W.2d 465. (5) The first paragraph of Instruction 1 tells the jury that defendant, Kroger Company, admits that Holtgrave was in charge of and foreman of loading operations on and about the loading platform mentioned in evidence. The defendant, Kroger, denies that Holtgrave was on the platform when and if plaintiff was injured, and the instruction is therefore misleading on an essential fact in the case. (6) The third paragraph of Instruction 1 assumes that the steel plate was not laying flat and assumes that the hand truck was violently pushed against the plate, without requiring the jury to determine the truth of either fact. Both facts are controverted and material in the case. Barr v. Nafziger Baking Co., 41 S.W.2d 559; Taylor v. Kansas City, 112 S.W.2d 562; Kirkham v. Jenkins Music Co., 104 S.W.2d 234; Weinel v. Hesse, 174 S.W.2d 903. (7) The court erred in permitting plaintiff to testify that out of the $ 60 to $ 70 net profit that he received as proprietor of a tavern he considered his wife's salary to be about $ 25 a week. Plaintiff testified that there is no set salary; that he pays his wife "just according to what we make." What plaintiff "considered" his wife's salary to be is a guess and is not competent evidence. There is no evidence showing that his wife was entitled to any salary. Plaintiff is entitled to the services of his wife. Plummer v. Trost, 81 Mo. 425; Farmers & Traders Bank v. Kendrick, 108 S.W.2d 62.

Edward O. Hancock and John T. Sluggett for respondent.

(1) There is sufficient evidence to support a finding that the Kroger Company provided an improper type of steel plate. It is well established that as many inferences as the facts establish, either by direct or circumstantial evidence, may be drawn as those facts will justify so long as one inference is not based upon another inference or inferences. Hulsey v. Tower Grove Quarry & Construction Co., 326 Mo. 194, 30 S.W.2d 1018; Kelly v. Kansas City B. & L. Assn., 229 Mo.App. 686, 81 S.W.2d 440; Beaber v. Kurn, 231 Mo.App. 22, 91 S.W.2d 70; Wills v. Berberich's Delivery Co., 345 Mo. 616, 134 S.W.2d 125. (2) It is the exclusive province of the jury to draw the inference and give it effect or reject it as they see fit. Martin v. St. Louis-S.F. Ry. Co., 329 Mo. 729, 46 S.W.2d 149; Frye v. St. Joseph Railway, L., H. & P. Co., 231 Mo.App. 407, 99 S.W.2d 540; State ex rel. Bauman v. Dodier, 121 S.W.2d 263; Mauzy v. Carson, 189 S.W.2d 829. (3) Plaintiff's action was not predicated solely upon the doctrine of respondent superior. A verdict in favor of an employee does not bar recovery against the employer, where the employer himself has been guilty of acts of the employee, liability may be predicated. Stith v. J.J. Newberry Co., 336 Mo. 467, 79 S.W.2d 447; Stoutimore v. Atchison, T. & S.F. Ry. Co., 338 Mo. 463, 92 S.W.2d 658; Devine v. Kroger Grocery & Baking Co., 349 Mo. 621, 162 S.W.2d 813; DeMoulin v. Roetheli, 354 Mo. 425, 189 S.W.2d 562. (4) Plaintiff was not guilty of contributory negligence as a matter of law. Whether one is guilty of contributory negligence depends upon the particular facts and circumstances surrounding the accident that caused his injury, and it is usually a question for the jury to determine. Graves v. Missouri Pac. R. Co., 342 Mo. 542, 118 S.W.2d 787; Tribout v. Kroger Grocery & Baking Co., 191 S.W.2d 261. (5) One required to act suddenly and in face of imminent danger is not required to act as if he had time for deliberation and full exercise of his judgment, and this is especially true where the peril has been caused by the fault of another. 45 C.J., pp. 962, 963; Clark v. Atchison & Eastern Bridge Co., 324 Mo. 544, 24 S.W.2d 143; Carter v. Wells, 40 S.W.2d 725; Menard v. Goltra, 328 Mo. 368, 40 S.W.2d 1053. (6) In determining whether plaintiff is guilty of negligence as a matter of law the evidence in his favor must be accepted as true and the whole evidence viewed most favorably to him. Cento v. Security Bldg. Co., 99 S.W.2d 1. (7) An instruction does not improperly assume a fact when it leaves that fact to be found from the evidence, and makes its finding essential to plaintiff's right to recover. McMillan v. Bausch, 234 S.W. 835; Geary v. Kansas City, O.S.R. Co., 138 Mo. 251, 39 S.W. 774; Moore v. St. Louis Tr. Co., 193 Mo. 411, 91 S.W. 1060; Sollars v. Atchison, T. & S.F. Ry. Co., 187 S.W.2d 513; Reith v. Tober, 320 Mo. 725, 8 S.W.2d 608; Rummels v. Illinois Central R. Co., 15 S.W.2d 363; Adams v. St. Louis Pub. Serv. Co., 32 S.W.2d 100; King v. Benefit Assn. of Ry. Employees, 184 S.W.2d 793. (8) It was proper for plaintiff to testify as to the wages he paid his wife for the purpose of determining plaintiff's earning capacity. The husband may, by his consent, concede to his wife the wages of her labor. Kidwell v. Kirkpatrick, 70 Mo. 214; Macks v. Drew, 86 Mo.App. 224; Dunifer v. Jecko, 87 Mo. 282; Regal Realty & Inv. Co. v. Gallagher, 188 S.W. 151; Friedel v. Bailey, 329 Mo. 22, 44 S.W.2d 9. (9) The verdict is not excessive. Gieseking v. Litchfield & Madison R. Co., 344 Mo. 672, 127 S.W.2d 700; Greenan v. Emerson Electric Mfg. Co., 354 Mo. 781, 191 S.W.2d 646.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

Action for damages for personal injuries alleged to have been sustained on account of the negligence of the defendants. The jury returned a verdict for plaintiff for $ 15,000 against defendant Kroger Grocery & Baking Company, but found for its employee Joseph M. Holtgrave. The trial court required a remittitur of $ 5,000, which was made, and judgment was entered against the Kroger Company for $ 10,000. It has appealed.

Respondent, a truck driver for the Pacific Inter-Mountain Express Company, sustained injuries to his left arm on June 18, 1945, while engaged in loading a semi-trailer at the loading platform of appellant's Chouteau and Spring Avenue bakery in St. Louis. Respondent backed his truck and semi-trailer into one of the stalls at the loading platform, so that the back of the semi-trailer was within a foot to eighteen inches of the edge of the platform and the floor of the semi-trailer was about the same distance below the platform level. A flat sheet of steel, referred to as a plate, about four feet square and one quarter of an inch thick, was placed as a bridge between the platform and the floor of the semi-trailer. Hand trucks, loaded with crackers and cookies, were then moved by appellant's employees from the platform into the semi-trailer, where they were unloaded by respondent and his helper.

It was alleged in the petition that appellant and its employee, Joseph M. Holtgrave, who was admitted to be "a shipping department employee in charge of and foreman of loading operations on and about the loading platform," caused the flat steel plate to be laid between the platform and the semi-trailer, "with the edge of the steel plate resting on the said platform extending upward about an inch," and that the "defendants, their agents, servants and employees carelessly and negligently failed and omitted to provide a proper steel plate, towit, a steel plate with one edge bent on an angle so that the said steel plate would lay flat on said loading platform when the opposite end was resting on the said lower semi-trailer."

It was further alleged that "defendants, their agents, servants and employees, did then and there so carelessly and negligently control, push, propel and manage a certain hand truck, float or skid, loaded with boxes of cookies, over said loading platform and toward the said semi-trailer, that it suddenly and violently struck the end of said steel plate which extended upward from the said loading platform as aforesaid and said...