Evans v. Sears, Roebuck & Co.

• Citation: 129 S.W.2d 53
• Decision Date: 06 June 1939
• Docket Number: No. 24994.,24994.
• Court: Court of Appeal of Missouri (US)
• Parties: EVANS v. SEARS, ROEBUCK & CO.

129 S.W.2d 53

EVANS v. SEARS, ROEBUCK & CO.

No. 24994.

St. Louis Court of Appeals. Missouri.

June 6, 1939.

Appeal from St. Louis Circuit Court; Frank. B. Coleman, Judge.

"Not to be published in State Reports."

Action by D. M. Evans against Sears, Roebuck & Company for damages for loss of services and society of plaintiff's wife and for expenses necessarily incurred by him as result of personal injury sustained by his wife. From a judgment dismissing the action, plaintiff appeals.

Affirmed.

Everett Hullverson, of St. Louis, for appellant.

Anderson, Gilbert, Wolfort, Allen & Bierman, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action by plaintiff, the husband, for damages for the loss of the services and society of his wife and for expenses necessarily incurred by him as the result of personal injuries sustained by his wife through the alleged negligence of defendant. At the close of plaintiff's case the court sustained defendant's request for a peremptory instruction, whereupon plaintiff took an involuntary nonsuit with leave to move to set the same aside. His motion to that effect was thereafter overruled by the court, and this appeal is by plaintiff from the final judgment which was entered dismissing his cause of action and discharging the defendant.

Prior to the institution of this (the husband's) case, the wife brought her own action for damages for the personal injuries she had sustained, and recovered a judgment against defendant which was affirmed by this court on May 4, 1937, in an opinion reported as Evans v. Sears, Roebuck & Co., Mo.App., 104 S.W.2d 1035. Thereafter plaintiff brought the present action on July 30, 1937, and while the same was pending awaiting a setting for trial, the wife died on October 14, 1937, after an operation for goiter. With her unavailable as a witness, plaintiff found difficulty in supplying the evidence necessary to make a case for the jury; and the points for review on this appeal have to do with the propriety of the court's action in not only directing a verdict for defendant upon the proof which plaintiff succeeded in getting into the record, but also in excluding evidence, which, if allowed to be introduced, would no doubt have supported the missing elements in plaintiff's prima facie case.

In his petition plaintiff alleged that defendant, as a corporation engaged in the department store business, held out an invitation to the general public to come to its store to transact business therein; that for the convenience of its patrons, as well as for its own use, it operated and maintained a parking lot at the rear of its store; that among the entrances to its store which the public was invited to use was an entrance in the rear of the store immediately adjacent to the parking lot; that on February 4, 1933, plaintiff's wife was a customer in defendant's store, and after having completed her business therein, left the building through the rear door adjacent to the parking lot; and that while using the lot and a driveway connecting the same with the street, both of which were at all times owned, maintained, and operated by defendant, she was caused to slip and fall upon the driveway as the direct result of the carelessness and negligence of defendant in having permitted the driveway to be and remain covered with ice, snow, and sleet, and in having failed to exercise ordinary care to remove the ice, snow, and sleet so that persons walking on the driveway would not be likely to slip and fall and be injured.

The petition then alleged that as a result of her fall plaintiff's wife had sustained numerous injuries, all of which were of a serious and permanent nature and had disabled her from performing her usual work and duties in and about the home; that by reason of such injuries to his wife, plaintiff had been required to employ help in his home for which he had expended the sum of $500; that he had become obligated for medical attention to his wife in a very considerable sum; and that he had been deprived of her aid, assistance, and companionship, all to his injury and damage in the sum of $3,000, for which sum he prayed judgment against defendant.

The answer to plaintiff's petition was a general denial of each and every allegation therein contained.

Plaintiff himself testified that while he remembered the occasion of his wife's accident, he had not been a witness to it; that he had last seen his wife prior to the accident at seven o'clock that morning when he left home for work; that he learned later in the morning that she had had an accident; and that when he returned home and discovered the extent of her injury, he had removed her to a hospital where she remained for seven or nine weeks. The balance of his testimony related to hospital and medical bills he had incurred in securing treatment for his wife; expenses to which he had been put in hiring help around the house during the more than four years that she had lived after the accident; and the extent of her disability as it had affected her ability to perform her usual and ordinary duties around the home.

A witness, Cull, testified for plaintiff that on the morning of the accident he had been engaged in cleaning windows on Aubert Avenue, which runs alongside defendant's parking lot; that he heard a woman scream, and upon looking around, saw plaintiff's wife lying prostrate in the driveway; that he went over to her and assisted her to her feet; that after she got upon her feet he could see marks on the driveway where her body had brushed the snow away; and that he had had trouble standing on the driveway on account of its being slippery from a coating of ice.

Counsel offered to prove by the witness, as a part of the res gestæ and for the purpose of establishing her status as an invitee, and not as a mere licensee, upon the premises, that while plaintiff's wife was still at the exact spot where the accident had happened, and within three minutes after its occurrence, she had requested him and the witness Padae to pick up her bundles that were scattered around on the ground, saying to them, "I just came out of Sears and my bundles are there, will you pick them up?" Such offer of proof was refused by the court, and the rejection of it is one of the points assigned as error on this appeal.

Padae testified to like effect — that as he was returning to his home by way of an alley which runs alongside the parking lot, he caught sight of plaintiff's wife just at the moment she fell in the driveway, and then hurried over to her, where Cull, who had meanwhile come to her aid ahead of him, was already engaged in helping her to her feet. Counsel also sought to prove by Padae, as he had previously sought to prove by Cull, that before she was taken away from the spot where she had fallen, she made a statement evidentiary of the fact that she had come from defendant's store where she had been a customer. With respect to the presence of the ice on the driveway, Padae testified that he had not only observed it at the time in question, but that he had also noticed it on the day before when he had had occasion to go across the parking lot.

So the evidence stood at the close of plaintiff's case when the court sustained the demurrer to the evidence upon the theory of a failure of proof of defendant's actionable negligence, that is, that plaintiff's wife had been an invitee upon the premises so as to have given rise to a duty on defendant's part to have exercised ordinary care for her safety, and that she had fallen and been injured as the direct result of defendant's negligence in having permitted the ice to be and remain upon the driveway.

Though defendant argues to the contrary, we may assume, at least for our present purposes, that in view of the evidence respecting the slippery condition of the driveway, the jury might have legitimately inferred that such condition was the occasion for and proximate cause of the fall that plaintiff's wife received. While it is true that there was no direct evidence that she slipped upon the ice, such testimony as there was pointed fairly to that conclusion, and any idea or possibility that she tripped over her own feet or was suddenly overtaken by faintness would have been the merest speculation. It follows, therefore, that the fatal weakness in plaintiff's case consisted not so much in the absence of proof as to the cause of her fall, but rather in the absence of proof with respect to her status as an invitee as to whom defendant had owed the duty of exercising due care to maintain its driveway in a reasonably safe condition for her to walk upon it.

Plaintiff argues that even upon the record which he was allowed to make, and certainly so when considered along with the opening statement of defendant's counsel, there was a sufficient basis to have justified an inference that his wife was an invitee of defendant at the time her injury was received.

Though counsel states his point as persuasively as the circumstances of the case permit, we nevertheless cannot avoid the conclusion that the record contains no proof upon such essential element of his cause of action. The evidence showed only that every morning plaintiff's wife went after groceries; that there was a grocery store in the near vicinity on Easton Avenue; and that while her packages were still...