Gerber v. Schutte Inv. Co.

• Decision Date: 08 April 1946
• Docket Number: 39541
• Parties: William L. Gerber, Jr., v. Schutte Investment Company, a Corporation, and Verbury, Incorporated, a Corporation, Appellants
• Court: Missouri Supreme Court

194 S.W.2d 25

354 Mo. 1246

William L. Gerber, Jr., v. Schutte Investment Company, a Corporation, and Verbury, Incorporated, a Corporation, Appellants

No. 39541

Supreme Court of Missouri

April 8, 1946

Rehearing Denied April 30, 1946.

Appeal from Jackson Circuit Court; Hon. John R. James Judge.

Affirmed.

Richard H. Beeson and David P. Dabbs for appellant Schutte Investment Company; W. B. Brewster for appellant Verbury, Incorporated.

(1) The court erred in granting plaintiff a new trial on the ground that it had previously erred in holding that the petition shows plaintiff was guilty of contributory negligence, as a matter of law, in walking into the open elevator shaft without looking where he was walking, and without exercising ordinary care to see the floor of the elevator car, and in negligently failing to see that the elevator car was not at the floor level where he walked into the elevator shaft. Bonanomi v. Purcell, 287 Mo. 436, 230 S.W. 120; Keeter v. Devoe & Raynolds, Inc., 338 Mo. 978, 93 S.W.2d 677. (2) Plaintiff's petition states no facts constituting negligence proximately causing plaintiff's injury, because (a) no facts are alleged showing the portion of the ordinance recited was applicable to the elevator in question, (b) no facts are alleged showing any violation of said ordinance, (c) no facts are alleged showing any causal connection between the assumed violation of the ordinance and plaintiff's injuries, (d) no facts are alleged showing a duty of defendant to protect plaintiff. Therefore, the court erred in setting aside its previous ruling so holding. State ex rel. Union Biscuit Co. v. Becker, 316 Mo 865, 293 S.W. 783; State ex rel. Natl. Newspapers Assn. v. Ellison, 176 S.W. 11; Davidson v. St. L. & S.F. Ry. Co., 229 S.W. 786.

Clarence C. Chilcott for respondent.

(1) Plaintiff cannot be convicted of contributory negligence as a matter of law from the allegations of his petition, and in the absence of evidence of his negligence. Unrein v. Oklahoma Hide Co., 295 Mo. 353, 244 S.W. 924; Keeter v. Devoe & Raynolds, 338 Mo. 978, 93 S.W.2d 677; Lanio v. Kansas City Pub. Serv. Co., 162 S.W.2d 862; Neal v. Curtis Mfg. Co., 328 Mo. 389, 41 S.W.2d 543; Schide v. Gottschick, 329 Mo. 64, 43 S.W.2d 777; Fox v. Missouri Jobbing House, 32 S.W.2d 130; Collins v. Leahy, 146 S.W.2d 609; Gerber v. Kansas City, 304 Mo. 157, 263 S.W. 432, 311 Mo. 49, 277 S.W. 562; McCloskey v. Salveter & Stewart Inv. Co., 298 S.W. 226; 9 R.C.L. 1250-1252. (2) Plaintiff's petition was sufficient to advise defendant what it was called upon to defend and to bar another action for the same cause, and, therefore, stated a cause of action. Hirst v. Ringen Real Estate Co., 69 S.W. 368; Kennedy v. Phillips, 5 S.W.2d 33; Duff v. Eichler, 82 S.W.2d 881; Tressler v. Whitsett, 12 S.W.2d 723; Brown v. General Motors Corp., 95 S.W.2d 654; Swaboda v. Brown, 196 N.E. 274, 129 Ohio St. 512; Burt v. Nichols, 173 S.W. 681; Fassi v. Schuler, 159 S.W.2d 774; Roper v. Wadleigh, 219 S.W. 982; Yall v. Snow, 100 S.W. 1; Andrus v. Bradley-Alderson Co., 93 S.W. 872; Ranus v. Boatmen's Bank, 214 S.W. 156; McCloskey v. Salveter & Stewart Inv. Co., 298 S.W. 226; Kelly v. Laclede Real Estate Co., 155 S.W.2d 90; Weisberg v. Boatmen's Bank, 217 S.W. 85; Baldwin v. Hanley & Kinsella Coffee Co., 216 S.W. 998; Monsour v. Excelsior Tobacco Co., 115 S.W.2d 219; Schneiter v. City of Chillicothe, 107 S.W.2d 112; Kitchen v. Schlueter Mfg. Co., 20 S.W.2d 676; Cushulas v. Schroeder & Tremayne, 22 S.W.2d 872. (3) Inasmuch as this court would remand the case for the express purpose of permitting the plaintiff to amend his petition where subject to demurrer, the lower court properly exercised its discretion in granting plaintiff a new trial. Schmidt v. Kansas City Distilling Co., 1 S.W. 865, 90 Mo. 284; Patzman v. Howey, 338 Mo. 436, 100 S.W.2d 851; Markly v. Kansas City Southern, 338 Mo. 436, 90 S.W.2d 409; Doty v. American Natl. Ins. Co., 165 S.W.2d 862; Woodson v. Metropolitan St. Ry. Co., 224 Mo. 685, 123 S.W. 820; Byrne v. Prudential Ins. Co. of America, 88 S.W.2d 344.

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

OPINION

VAN OSDOL

Plaintiff by his amended petition sought to recover $ 25,000 damages for personal injuries. On motion of defendant (a lessor), and a third-party defendant (a lessee who had undertaken to protect the lessor from liability), the petition was dismissed with prejudice and judgment rendered against plaintiff. But the trial court granted a new trial, and defendant and third-party defendant have appealed.

The grounds assigned by the trial court for sustaining the motion for a new trial are,

"1. Because the court erred in holding that plaintiff's petition was insufficient to state a cause of action.

"2. Because the court erred in holding that plaintiff's petition showed he was guilty of contributory negligence as a matter of law."

The allegations of the petition in such parts as are necessary for review herein are as follows,

"1. Comes now . . . plaintiff and for his cause of action against the above named defendant alleges that said defendant . . . owns and operates a building at 1209-1211 Grand Avenue, sometimes known as the Schutte Building, and operates therein an elevator which serves the tenants thereof.

"2. Plaintiff further alleges that under and by virtue of the Laws and Ordinances of Kansas City, Jackson County, Missouri, to-wit, Subsection (b), Section 4 of Article 44, it is made and provided as follows:

"'(b) Every door opening in passenger elevator hatchways shall be equipped with self-closing doors, and the doors shall be equipped with approved electric, mechanical or electro-mechanical interlocks designed to prevent the operation of the car until the doors are closed.'

"3. Plaintiff further alleges that on or about the fifth day of October, 1938, he operated said elevator in said building to the street entrance or first floor of said building and left it with the door open for a few minutes; that during said period of time, without said door of said elevator being closed, said elevator moved and left the position in which plaintiff had stopped it, and that when plaintiff attempted to board said elevator at said first floor he stepped into the elevator shaft and was caused to fall and be precipitated to the basement floor many feet below, as a direct result of all of which he was greatly bruised, . . .

"4. Plaintiff further alleges that all of his said injuries and disabilities were directly and wholly caused and brought about by the negligent, careless and unlawful acts and omissions of the defendant, all to the damage of plaintiff . . .

"WHEREFORE, plaintiff prays judgment against the defendant for the sum of . . ."

Defendants (appellants) contend, (1) the petition is insufficient as a statement of facts upon which relief could be granted, because (a) no facts are alleged showing the subsection of the alleged ordinance was applicable to the elevator in question, (b) no facts are alleged showing a violation of the ordinance, (c) no facts are alleged showing causal connection between the assumed violation of the ordinance and plaintiff's injury, and (d) no facts are alleged showing a duty of defendant to protect plaintiff; and (2) under the allegations in the petition plaintiff was guilty of contributory negligence as a matter of law in walking into the open elevator shaft without exercising ordinary care in looking to see that the elevator car was at the floor level.

Although the petition was filed and amended prior to the effective date, January 1, 1945, of the Civil Code of Missouri, Laws of Missouri 1943, p. 353 et seq., the action was pending and the trial court's order in sustaining the motion to dismiss was made after the effective date of the Code. It may here also be noted that when the motion to dismiss was sustained, a motion had long been pending (and undisposed of) to require the plaintiff to make the petition more definite and certain by alleging with particularity what negligent and unlawful acts and omissions of defendant caused the injury.

The Civil Code of Missouri, supra (Section 35), provides that each averment of a pleading shall be simple, concise and direct; (Section 36) that a pleading which sets forth a claim for relief shall contain a short and plain statement of the facts showing that the pleader is entitled to relief; and (Section 62) that an objection of failure to state a claim upon which relief may be granted may be raised by motion, when the ground for such an objection appears on the face of the pleading. And see Section 63, providing for a motion for a more definite statement of facts or for a bill of particulars of any matter not averred with sufficient definiteness or particularity to enable the adverse person to properly plead or to prepare generally for trial; Section 57, providing that all pleadings shall be so construed as to do substantial justice; Section 81, providing that leave to amend a pleading shall be freely given where justice so requires; Sections 85 to 89, broadly implementing an examination and discovery of facts; Section 84, authorizing the trial court in its discretion to direct counsel to appear for a pretrial conference. These and other sections of the Code signalize a comparatively new, various and more intensified approach to the accomplishment of the ultimate aim of all civil procedure than had been used under the (now repealed) provisions of the Civil Code of 1849.

We must appreciate and endeavor to effectively use the various means provided for attaining the objectives of the Civil Code of Missouri. It has been appropriately said that the primary objectives of the Code are to simplify legal procedure; to expedite trials and appellate reviews; and to lessen the...