Flint v. Loew's St. Louis Realty & Amusement Corp.

• Decision Date: 15 March 1939
• Docket Number: 34903
• Parties: May Flint v. Loew's St. Louis Realty & Amusement Corporation, a Corporation, Appellant
• Court: Missouri Supreme Court

126 S.W.2d 193

344 Mo. 310

May Flint v. Loew's St. Louis Realty & Amusement Corporation, a Corporation, Appellant

No. 34903

Supreme Court of Missouri

March 15, 1939

Rehearing Granted, Reported at 344 Mo. 310 at 321.

Appeal from Circuit Court of City of St. Louis; Hon. Frank Landwehr, Judge.

Order granting new trial set aside, cause remanded with directions to reinstate the verdict and judgment.

George A. Hodgman and Robert S. Lindsey for appellant.

(1) Appellant's Instruction 8 properly stated the law, was not confusing or misleading, did not require respondent to disprove her own contributory negligence and was a correct instruction. It should be construed together with Instructions 1, 2 and 3, asked by, and given for, the respondent. Linders v. People's Motor Bus Co., 326 Mo. 695, 32 S.W.2d 580; Block v. Kinder, 338 Mo 1099, 93 S.W.2d 932; Bleil v. Kansas City, 70 S.W.2d 913; Dietz v. Magill, 104 S.W.2d 707. (2) Without in any way receding from or limiting its contention that the wording of Instruction 8 is correct, the appellant, as an additional ground for refusing to disturb the verdict of the jury, calls the court's attention to the fact that by failing to request additional or explanatory instructions the respondent waived her objection and is estopped from complaining at this time. 14 R. C. L. 795; 64 C. J. 838; Pennock v. Dialogue, 2 Peters, 1, 8 U.S. 1, 7 L.Ed 327; Illinois Cent. Railroad v. Skaggs, 240 U.S. 66, 36 S.Ct. 249, 60 L.Ed. 528; Morgan v. Mulhall, 214 Mo. 462, 114 S.W. 4; Goffe v. Natl. Surety Co., 321 Mo. 159, 9 S.W.2d 929; Soureal v. Wisner, 321 Mo. 929, 13 S.W.2d 552; Tetherow v. St. Joseph, D. M. Ry. Co., 98 Mo. 86, 11 S.W. 313; Block v. U. S. F. & G. Co., 316 Mo. 302, 290 S.W. 439; Berryman v. Southern Surety Co., 285 Mo. 396, 227 S.W. 101; Perry v. M. K. & T. Ry. Co., 104 S.W.2d 340; Lee Tire Co. v. Grodsky, 329 Mo. 714, 46 S.W.2d 862; Brickwell v. Fleming, 281 S.W. 951; Moloney v. Boatmen's Bank, 288 Mo. 458, 232 S.W. 140; Hancock v. Kansas City Term. Ry. Co., 100 S.W.2d 574; Sallee v. St. L.-S. F. Ry. Co., 321 Mo. 807, 12 S.W.2d 479; Sontag v. Ude, 191 Mo.App. 627, 177 S.W. 662. (3) Instruction 9 given at request of appellant properly stated the law, was not confusing or misleading, and the fact that willful false swearing was not required did not constitute error for the reason that the instruction did not allow the jury the liberty of rejecting or disregarding any of witnesses' testimony other than the portion they believed to be false and was not, therefore, a statement of the maxim "falsus in uno, falsus in omnibus." 70 C. J. 783; 14 R. C. L. 736; Moett v. People, 85 N.Y. 373; Virginia Ry. & Power Co. v. Hill, 120 Va. 397, 91 S.E. 194; Mowat v. Sandel, 262 Ill.App. 395; Jacobs v. Danciger, 328 Mo. 458, 41 S.W.2d 389, 77 A. L. R. 1237; Larsen v. Webb, 332 Mo. 370, 58 S.W.2d 967, 90 A. L. R. 67; Rockenstein v. Rogers, 326 Mo. 481, 31 S.W.2d 792; Gould v. C. B. & Q. Ry. Co., 315 Mo. 723, 290 S.W. 135; Griswold v. Haas, 277 Mo. 263, 210 S.W. 356; Exodus 20:16. (4) The giving and reading of Instruction 9 was harmless error since it was not prejudicial to the plaintiff, but the error, if any, was prejudicial to appellant. The respondent, therefore, cannot complain. 5 C. J. S. 802, 1092, 1102; State ex rel. Mo. Mut. Assn. v. Allen, 336 Mo. 359, 78 S.W. 862; Boggs v. M. K. & T. Ry. Co., 336 Mo. 528, 80 S.W.2d 141; Ellis v. Met. St. Ry. Co., 234 Mo. 679, 138 S.W. 1. (5) All the instructions in the case should be construed together, and, if so construed they fairly state the applicable law; immaterial or inconsequential errors in the instructions will not justify setting aside the verdict of the jury. McDonald v. Kansas City Gas Co., 332 Mo. 356, 59 S.W.2d 37; Jenkins v. Mo. State Life Ins. Co., 334 Mo. 941, 69 S.W.2d 666.

B. Sherman Landau for respondent.

(1) Plaintiff may, on appeal, present grounds contained in plaintiff's motion for new trial other than those assigned by the trial court in granting plaintiff's motion. Sakowski v. Baird, 334 Mo. 951, 69 S.W.2d 649; Macklin v. Fogel Const. Co., 326 Mo. 38, 31 S.W.2d 14; Cole v. St. L.-S. F. Ry. Co., 332 Mo. 999, 61 S.W.2d 344; Beer v. Martel, 332 Mo. 53, 55 S.W.2d 482; Tabler v. Perry, 337 Mo. 154, 85 S.W.2d 471. (2) The former opinions of the plaintiff, contained in the statement written by the claim adjuster, Pier, and signed by the plaintiff, where not properly admissible as admissions against the interest of the plaintiff. McFadin v. Catron, 120 Mo. 264, 25 S.W. 506, 22 C. J. 299; Jones' Commentary on Evidence (2 Ed.), pp. 2284-5; Kuhlen v. Chicago Athletic Assn., 185 Ill.App. 579; Monger v. Effland, 87 Kan. 710, 125 P. 46; Aschenbach v. Keene, 92 N.Y.S. 764. (3) Defendant's Instruction 5, on plaintiff's contributory negligence, is erroneous because: (a) It assumes plaintiff's negligence without submitting to the jury whether the acts complained of constituted negligence. McLaughlin v. Marlatt, 296 Mo. 656, 246 S.W. 548, affirm. 228 S.W. 873; Alexander v. Hoenshell, 66 S.W.2d 168; Mahaney v. K. C., etc., Ry. Co., 329 Mo. 793, 46 S.W.2d 817; Clark v. Atchison & Eastern Bridge Co., 324 Mo. 544, 24 S.W.2d 143; Savona v. May Dept. Stores Co., 71 S.W.2d 159, and (b) there was no evidence to support the negligence set forth in the instructions. Miller v. Williams, 76 S.W.2d 355; Snyder v. Murray, 223 Mo.App. 671, 17 S.W.2d 639; Pulsifer v. Albany, 226 Mo.App. 529, 47 S.W.2d 233. (4) Defendant's Instruction 6, advising the jury that "the only charge of negligence which they will consider is whether or not the carpeting was in fact torn," is erroneous in that it is inconsistent, misleading, and contradictory to the preceding Instruction 5, which related to the contributory negligence of plaintiff. Owens v. McCleary, 313 Mo. 213, 281 S.W. 682; Laible v. Wells, 317 Mo. 141, 296 S.W. 428; Stafford v. Ryan, 276 S.W. 636. (5) Defendant's Instruction 6 is further erroneous for the reason that it gives undue prominence to the defendant's lack of knowledge of the defective carpet, and unnecessarily singles out that phase of the required proof. Simpson v. Burnett, 299 Mo. 232, 252 S.W. 949. (6) Defendant's Instruction 7, advising the jury that the law does not impose upon the operator of a theatre the legal duty of absolutely insuring the safety of its patrons, is erroneous: (a) As calling the jury's attention to matters outside the issues of the case. Galber v. Grossberg, 324 Mo. 742, 25 S.W.2d 96, and (b) As constituting an abstract instruction not requiring the finding of any facts, tending to broaden the issues, to confuse the jury, and to invite error. Span v. Jackson, Walker Coal & Mining Co., 16 S.W.2d 190; Birdsong v. Jones, 225 Mo.App. 242, 30 S.W.2d 1094; First Natl. Bank v. Aquamsi Land Co., 70 S.W.2d 90; State ex rel. Aquamsi Land Co. v. Hostetter, 336 Mo. 391, 79 S.W.2d 463; Humphreys v. Chicago, M., St. P. Ry. Co., 83 S.W.2d 586; Freeman v. Berberich, 332 Mo. 831, 60 S.W.2d 393. (7) Defendant's Instruction 8, on burden of proof, is erroneous in that: (a) It casts upon the plaintiff the burden of proof on the issue of contributory negligence. Szuch v. Ni Sun Lines, 332 Mo. 469, 58 S.W.2d 471; Clark v. Bridge Co., 324 Mo. 544, 24 S.W.2d 153; Raymen v. Galvin, 229 S.W. 749; Chaar v. McLoon, 304 Mo. 249, 263 S.W. 174; Bennett v. Natl. Union Fire Ins. Co., 80 S.W.2d 914. (b) The entire instruction is too much in the nature of a lecture to the jury on its duty to the defendant and not as to the law of the case. Mitchell v. Dyer, 57 S.W.2d 1083; Rouchene v. Gamble Const. Co., 89 S.W.2d 63; Miller v. Williams, 76 S.W.2d 357; Unterlachner v. Wells, 278 S.W. 83; Nelson v. Evans, 93 S.W.2d 694. (c) When read with the other instructions in this case, Instruction 8 is erroneous in that it advises the jury that they "cannot presume that the defendant was negligent," thereby creating the inference that the jury might properly, should it desire to do so, presume the negligence of plaintiff as set forth in defendant's Instruction 5. (8) Defendant's Instruction 9, pertaining to the credibility of witnesses, is erroneous: (a) It fails to require that the false swearing of the witnesses be either willful or intentional. Jacobs v. Danciger, 328 Mo. 458, 77 A. L. R. 1237, 41 S.W.2d 389. (b) For the further error in failing to contain any reference to the witness Gilbert Smith, Jr., who testified entirely by deposition on behalf of the defendant. An instruction on witness's credibility which does not include witnesses who testified by deposition, is fatally defective. Pyle v. McNeally, 227 Mo.App. 1035, 62 S.W.2d 924; Hansberger v. Electric L. & P. Co., 82 Mo.App. 576.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

Loew's St. Louis Realty and Amusement Company, a corporation, appeals from an order granting May Flint a new trial for asserted error in the giving of Instructions Nos. "8" and "9" on behalf of appellant. Respondent asked $ 15,000 damages for injuries sustained when respondent's foot allegedly was caught in loose, torn, worn and insecure carpeting while descending a flight of stairs on appellant's premises. The case reaches the writer upon reassignment.

I. Invoking that portion of our Rule 15 calling for "a fair and concise statement of the facts of the case without reiteration, statements of law, or argument" (consult Sec. 1060, R. S. 1929, Mo. Stat. Ann., p. 1341) respondent has filed a motion to dismiss alleging in substance that appellant's statement presents a biased and distorted version of the record, is interspersed with comments of an argumentative nature, and quotes and emphasizes testimony favorable to appellant. We have said the above portion of said rule requires such a fair and concise statement of the ultimate facts, rather...