Franklin v. May Department Stores Co.
| Decision Date | 11 October 1938 |
| Docket Number | No. 12715.,12715. |
| Citation | 25 F. Supp. 735 |
| Parties | FRANKLIN v. MAY DEPARTMENT STORES CO. et al. |
| Court | U.S. District Court — Eastern District of Missouri |
J. M. Brown & Ephrim Caplan, of St. Louis, Mo., for plaintiff.
Carter & Jones and James E. Garstang, all of St. Louis, Mo., for defendant.
The amended petition alleges: "that the defendant May Department Stores Company * * * now is, and at all times herein mentioned was, a Corporation * * * engaged in the business of owning and operating through its officers, agents and representatives a retail department store in the City of St. Louis, Missouri; that defendant Isadore Edward Saifer * * * is, and at all the times herein mentioned was, and for many years prior thereto had been the building manager for May Company in charge of the operation and maintenance of the premises housing said business and in charge of the use, operation and maintenance of the herein mentioned revolving doors;"
Plaintiff's wife was injured in a revolving door. That injury is the basis of this action.
Specific acts of negligence are charged, to wit:
1. That the door in question was not equipped with adequate friction strips to prevent rapid revolution.
2. That the friction strips were old, uneven, worn, torn and inefficient.
3. That the door and the friction strips were not inspected.
4. That the friction strips were not properly adjusted.
5. (Substantially same as assignments 1 and 2).
6. Failed to repair friction strips.
7. Failed to install any appliance to govern, regulate and retard speed of revolution.
8. Failed to construct and operate door in such a manner that it would collapse when revolved at dangerous speed.
9. Failure to warn of dangerous and defective condition.
The motion to remand is based upon the assumption that the petition states a cause of action against the resident defendant Saifer. If the above quoted language fairly implies that Saifer had complete and exclusive authority over the management (Orcutt v. Century Bldg. Co., et al., 201 Mo. 424, 425, 99 S.W. 1062, 8 L.R.A.,N.S., 929) or control (Lambert v. Jones, 339 Mo. 677, 98 S.W.2d 752) of the building plaintiff's position is well taken. It will be noted that the language used does not allege complete and exclusive management or control in Saifer but to the contrary states that the corporate defendant is operating the building. True, it is alleged that the Corporation is operating the building through its agents and representatives, but...
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Miller v. Muscarelle
...and agents liable to third persons by finding 'misfeasance' in certain omissions. For example, the court in Franklin v. May Department Stores Co., 25 F.Supp. 735, 736 (D.C.Mo.1939), 'There can be no recovery from an agent or servant for nonfeasance alone unless the agent has assumed and act......
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S. H. Kress & Co. v. Selph, 4738
...677, 98 S.W.2d 752; Brown v. Yeckel, Earickson & Co., Mo.App., 129 S.W.2d 66. And see: concerning the Missouri rule: Franklin v. May Dept. Stores Co., D.C., 25 F.Supp. 735; Landreth v. Phillips Petroleum Co., D.C., 74 F.Supp. On the other hand, the Supreme Court of Alabama has held in Water......
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Union Marine & General Ins. Co. v. American Export Lines, Inc., 60 Civ. 2788.
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