Geninazza v. R. U. Leonori Auction & Storage Co., No. 23092.

CourtMissouri Supreme Court
Writing for the CourtHigbed
Citation252 S.W. 417
PartiesGENINAZZA v. R. U. LEONORI AUCTION & STORAGE CO. et al.
Decision Date22 May 1923
Docket NumberNo. 23092.
252 S.W. 417
GENINAZZA
v.
R. U. LEONORI AUCTION & STORAGE CO. et al.
No. 23092.
Supreme Court of Missouri, in Banc.
May 22, 1923.

[252 S.W. 418]

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

Action by Catherine Geninazza against R. U. Leonori Auction & Storage Company and another. Judgment for plaintiff was reversed by the Court of Appeals (233 S. W. 75), and cause certified to Supreme Court. Judgment for plaintiff affirmed.

Cobbs & Logan and Albert D. Hausman, all of St. Louis, for appellants.

Kelley, Starke & Moser and Charles E. Morrow, all of St. Louis, for respondent.

HIGBED, C.


The Court of Appeals reversed the judgment of the trial court, and transferred the cause to this court, because it deemed its decision to be in conflict with Mc-Laughlin v. Marlatt, 228 S. W. 873, decided by the Kansas City Court of Appeals. It will not be necessary to restate the facts in the case, as the learned opinion of the Court of Appeals is reported in Geninazza v. Leonori, 233 S. W. 75. We will, however, further briefly refer to the evidence to throw additional light on the issues. Since the case was transferred to this court, the death of the appellant R. U. Leonori has been suggested, and the cause revived in the names of his executors.

The petition charges, in substance, that the plaintiff was an invitee in defendant's premises, and that in passing from one room to another she fell down a stairway that was dark and insufficiently lighted, so that she was unable to see the steps and know the location thereof, and that there were no banisters or handrails on the sides of said stairway. In addition to the evidence of the plaintiff quoted in the opinion of the Court of Appeals, plaintiff testified:

"Q. You didn't see the steps at all? A. No. sir; I looked down and I didn't see; it was so dark that you couldn't see; the light and shadow there caused you to look two or three times. * * * It was a gloomy day."

Mrs. Simon, plaintiff's witness, testified:

"Q. Go ahead; what did you see happen to her? A. He wasn't walking fast; Mr. Hertz walked ahead of us; of course, the distance I didn't measure, and Mrs. Geninazza, I followed her—she went slow—she wasn't going fast, because she seemed to be kind of careful. All tat once I found she was down on her hands and knees at the bottom of the stairs. Q. When you came out onto this landing tell us whether or not it was dark or light? A. Well. it was kind—it wasn't dark; it was a very gloomy place; it wasn't a bit bright. Q. State whether or not there were shadows. A. Yes, sir; it was a kind of shadow there. Q. Did you go down to her? A. I certainly did, Q. How did you find the top of the stairs? A. Of course, naturally, she being hurt, I wan cautious, too. I was very cautious to get down, and didn't walk very fast. I went to her assistance and says, `Are you hurt?' She says, `Yes, I am.'"

David Goldberg, the manager for defendant, a witness for defendant, referring to the droplight at the foot of the stairway, testified that it was a standing instruction to keep that light burning all the time. He further testified there were solid blue shades half* way over the windows; that such shades were nonconductors of light.

Mr. Hertz, a witness for defendant, testified:

"I didn't see her [plaintiff] come out onto the platform. I went ahead of her 8 or 10 feet. I told her to follow me this way (indicating). After I got down the steps, I turned around to see where Mrs. Simon was—to see whether Mrs. Simon was following me, and I saw Mrs. Geninazza sitting on the floor. Before that I saw her in the hallway. I didn't see her on the platform. Q. You didn't tell Mrs. Geninazza that the steps were there, did You? A. I told her to follow me `this way.' Q. I beg your pardon; did you tell Mrs. Geninazza, or not, that the steps were there? A. She ought to know that the steps were there; she seen me—

"Mr. Kelly: I move that that be stricken out, your honor.

"The Court: All right then; just answer the question. * * * A. No, sir."

1. This cause having been transferred to this court in accordance with section 6 of the amendment of 1884 to the Constitution, we have jurisdiction of the appeal as if the case were one appealable to this court in the first instance. Keller v. Summers, 262 Mo. 324, 171 S. W. 336; Robertson v. Robertson, 270 Mo. 137, 192 S. W. 988; Hayes v. Sheffield Ice Co., 282 Mo. 446, 452, 221 S. W. 706.

2. At the close of plaintiff's evidence, the defendant offered a demurrer, which was overruled. It was not renewed at the close of all the evidence, but the court submitted the case to the jury upon instructions. An instruction for the defendant submitted the question of plaintiff's contributory negligence, to the effect that, if there was sufficient light on the platform and steps to permit a person of ordinarily good sight, in the exercise of ordinary care, to see said steps, then the verdict must be for the defendant. Appellants do not complain in their brief of the giving or refusal of instructions; their sole complaint

252 S.W. 419

is that the verdict is unsupported by any substantial evidence, and that the court erred in overruling the demurrer to the evidence offered at the close of the plaintiff'; case.

3. The amended answer did not rats( the issue of contributory negligence. After a general denial, it averred that, if plaintiff sustained any injury, it "was due, wholly or in part, to the plaintiff's own negligence.' Such a plea is not sufficient; it should plead the facts constituting the negligence. Harri" son v. Mo. Pac. Ry., 74 Mo. 364, 41 Am. Rep. 318; Benjamin v. Metropolitan St. Ry., 241 Mo. 598, 613, 151 S. W. 91. These and many other cases hold that contributory negligence is an affirmative defense and must be pleaded and proven to be available. The plea in this case is simply the averment of a legal conclusion. It is not the statement of issuable facts, and is to be treated as no statement al all. The allegation of a conclusion of law raises no issue, need...

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28 practice notes
  • La Sell v. Tri-States Theatre Corp., No. 46250.
    • United States
    • United States State Supreme Court of Iowa
    • September 21, 1943
    ...a matter of law. It may be said of appellant as was said of the plaintiff in Geninazza v. R. U. Leonori Auction & Storage Co., Mo.Supp., 252 S.W. 417, 420: “In the light of the facts, plaintiff was not required, as a matter of law, to stop and cautiously feel her way; that measure of care w......
  • La Sell v. Tri-States Theatre Corp., 46250.
    • United States
    • United States State Supreme Court of Iowa
    • September 21, 1943
    ...as a matter of law. It may be said of appellant as was said of the platiff Genazza v. R. U. Leonori Auction & Storage Co., Mo.Supp., 252 S.W. 417, 420: "In the light of the facts, platiff was not required, as a matter of law, to stop and cautiously feel her way; that measure of care would b......
  • Block v. United States Fidelity & Guaranty Co., No. 25914.
    • United States
    • United States State Supreme Court of Missouri
    • November 23, 1926
    ...acts, unless objected to by demurrer, motion, or otherwise before or during trial. Geninazza v. Auction & Storage Co. (Mo. Sup.) 252 S. W. 417; Machinery Co. v. Bottling Co., 273 Mo. 142, 200 S. W. 1079; Tebeau v. Ridge, 261 Mo. 547, 170 S. W. 871, L. R. A. 1915C, 367; Simpson v. Wells, 292......
  • Kitchen v. Schlueter Mfg. Co., No. 27611.
    • United States
    • Missouri Supreme Court
    • October 14, 1929
    ...case below on the theory that the petition stated a cause of action, and is bound by that theory on appeal. Geninaza v. Storage Co. (Mo.), 252 S.W. 417; In re McMenamy's Guardianship, 307 Mo. 98; McCoy v. Modern Woodmen, 275 S.W. 555; Simpson v. Wells, 292 Mo. 301; Jett v. Ry. Co., 178 Mo. ......
  • Request a trial to view additional results
28 cases
  • La Sell v. Tri-States Theatre Corp., No. 46250.
    • United States
    • United States State Supreme Court of Iowa
    • September 21, 1943
    ...a matter of law. It may be said of appellant as was said of the plaintiff in Geninazza v. R. U. Leonori Auction & Storage Co., Mo.Supp., 252 S.W. 417, 420: “In the light of the facts, plaintiff was not required, as a matter of law, to stop and cautiously feel her way; that measure of care w......
  • La Sell v. Tri-States Theatre Corp., 46250.
    • United States
    • United States State Supreme Court of Iowa
    • September 21, 1943
    ...as a matter of law. It may be said of appellant as was said of the platiff Genazza v. R. U. Leonori Auction & Storage Co., Mo.Supp., 252 S.W. 417, 420: "In the light of the facts, platiff was not required, as a matter of law, to stop and cautiously feel her way; that measure of care would b......
  • Block v. United States Fidelity & Guaranty Co., No. 25914.
    • United States
    • United States State Supreme Court of Missouri
    • November 23, 1926
    ...acts, unless objected to by demurrer, motion, or otherwise before or during trial. Geninazza v. Auction & Storage Co. (Mo. Sup.) 252 S. W. 417; Machinery Co. v. Bottling Co., 273 Mo. 142, 200 S. W. 1079; Tebeau v. Ridge, 261 Mo. 547, 170 S. W. 871, L. R. A. 1915C, 367; Simpson v. Wells, 292......
  • Kitchen v. Schlueter Mfg. Co., No. 27611.
    • United States
    • Missouri Supreme Court
    • October 14, 1929
    ...case below on the theory that the petition stated a cause of action, and is bound by that theory on appeal. Geninaza v. Storage Co. (Mo.), 252 S.W. 417; In re McMenamy's Guardianship, 307 Mo. 98; McCoy v. Modern Woodmen, 275 S.W. 555; Simpson v. Wells, 292 Mo. 301; Jett v. Ry. Co., 178 Mo. ......
  • Request a trial to view additional results

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