Gerber v. Schutte Investment Co., No. 39541.

CourtMissouri Supreme Court
Writing for the CourtVan Osdol
Citation194 S.W.2d 25
PartiesWILLIAM L. GERBER, JR., v. SCHUTTE INVESTMENT COMPANY, a Corporation, and VERBURY, INCORPORATED, a Corporation. Appellants.
Docket NumberNo. 39541.
Decision Date08 April 1946
194 S.W.2d 25
WILLIAM L. GERBER, JR.,
v.
SCHUTTE INVESTMENT COMPANY, a Corporation, and VERBURY, INCORPORATED, a Corporation. Appellants.
No. 39541.
Supreme Court of Missouri.
Division One, April 8, 1946.
Rehearing Denied, April 30, 1946.

[194 S.W.2d 26]

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.


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

194 S.W.2d 27

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...

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44 practice notes
  • Webb v. Union Electric Co., No. 20889.
    • United States
    • Court of Appeal of Missouri (US)
    • June 13, 1949
    ...355 Mo. 362, 196 S.W. 2d 163 (1946); Wooten v. Friedberg, 355 Mo. 756, 198 S.W. 2d 1 (1946); Gerber v. Schuette Inv. Co., 354 Mo. 1246, 194 S.W. 2d 25 (1946); Brackmann v. Brackmann, 202 S.W. 2d 561 (St. L.C.A., 1947); Duffy v. Barnhart Store Co., 202 S.W. 520 (St. L.C.A., 1947). This rule ......
  • Kesinger v. Burtrum, No. 7458
    • United States
    • Missouri Court of Appeals
    • August 17, 1956
    ...270 (6); Currier v. Lowe, 32 Mo. 203; Morrison v. Painter, Mo.App., 170 S.W.2d 965, 971(14). 2 Gerber v. Schutte Inv. Co., 354 Mo. 1246, 194 S.W.2d 25, 28; Grapette Co. v. Grapette Bottling Co., Mo.App., 286 S.W.2d 34, 38; Dugan v. Trout, Mo.App., 271 S.W.2d 593, 597. Consult also Linders v......
  • Welch v. Thompson, No. 40373.
    • United States
    • Missouri Supreme Court
    • March 8, 1948
    ...of a violent lurch of the coach, we think she should have plainly stated the circumstance. Gerber v. Schutte Inv. Co., 354 Mo. 1246, 194 S.W. 2d 25. But we believe the petition was sufficient in stating general negligence. The allegation of negligence was an allegation of issuable ultimate ......
  • Grapette Co. v. Grapette Bottling Co., No. 7383
    • United States
    • Court of Appeal of Missouri (US)
    • January 11, 1956
    ...to be of the greatest utility in defining the issues of a case' tried under our present code. Gerber v. Schutte Inv. Co., 354 Mo. 1246, 194 S.W.2d 25, 28; Hilderbrand v. Anderson, Mo.App., 270 S.W.2d 406, 409. Consult also Linders v. Linders, 356 Mo. 852, 204 S.W.2d 229, 230(2); Williams v.......
  • Request a trial to view additional results
44 cases
  • Webb v. Union Electric Co., No. 20889.
    • United States
    • Court of Appeal of Missouri (US)
    • June 13, 1949
    ...355 Mo. 362, 196 S.W. 2d 163 (1946); Wooten v. Friedberg, 355 Mo. 756, 198 S.W. 2d 1 (1946); Gerber v. Schuette Inv. Co., 354 Mo. 1246, 194 S.W. 2d 25 (1946); Brackmann v. Brackmann, 202 S.W. 2d 561 (St. L.C.A., 1947); Duffy v. Barnhart Store Co., 202 S.W. 520 (St. L.C.A., 1947). This rule ......
  • Kesinger v. Burtrum, No. 7458
    • United States
    • Missouri Court of Appeals
    • August 17, 1956
    ...270 (6); Currier v. Lowe, 32 Mo. 203; Morrison v. Painter, Mo.App., 170 S.W.2d 965, 971(14). 2 Gerber v. Schutte Inv. Co., 354 Mo. 1246, 194 S.W.2d 25, 28; Grapette Co. v. Grapette Bottling Co., Mo.App., 286 S.W.2d 34, 38; Dugan v. Trout, Mo.App., 271 S.W.2d 593, 597. Consult also Linders v......
  • Welch v. Thompson, No. 40373.
    • United States
    • Missouri Supreme Court
    • March 8, 1948
    ...of a violent lurch of the coach, we think she should have plainly stated the circumstance. Gerber v. Schutte Inv. Co., 354 Mo. 1246, 194 S.W. 2d 25. But we believe the petition was sufficient in stating general negligence. The allegation of negligence was an allegation of issuable ultimate ......
  • Grapette Co. v. Grapette Bottling Co., No. 7383
    • United States
    • Court of Appeal of Missouri (US)
    • January 11, 1956
    ...to be of the greatest utility in defining the issues of a case' tried under our present code. Gerber v. Schutte Inv. Co., 354 Mo. 1246, 194 S.W.2d 25, 28; Hilderbrand v. Anderson, Mo.App., 270 S.W.2d 406, 409. Consult also Linders v. Linders, 356 Mo. 852, 204 S.W.2d 229, 230(2); Williams v.......
  • Request a trial to view additional results

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