Giles v. Moundridge Milling Co.

• Decision Date: 27 August 1943
• Docket Number: 38467
• Parties: William Giles v. Moundridge Milling Company, a Corporation, and Ernestine J. Keltner, Appellants
• Court: Missouri Supreme Court

173 S.W.2d 745

351 Mo. 568

William Giles v. Moundridge Milling Company, a Corporation, and Ernestine J. Keltner, Appellants

No. 38467

Supreme Court of Missouri

August 27, 1943

Appeal from Jackson Circuit Court; Hon. Marion D. Waltner Judge.

Affirmed and remanded.

Paul C. Sprinkle, Wm. F. Knowles and Sprinkle & Knowles for appellants.

(1) No duty rested upon the appellant, Moundridge Milling Company either to warn the plaintiff or do anything else to prevent him from falling and further because the evidence clearly and without contradiction showed that the plaintiff fell by reason of a condition which was open, obvious and apparent to him. Weddle v. St. Joseph Power Co., 47 S.W.2d 1098; Mulcahey v. Brotherhood of Trainmen, 79 S.W.2d 759 229 Mo.App. 610; State ex rel. Weddle v. Trimble, 52 S.W.2d 864, 331 Mo. 1; Peck v. Yale Amusement Co., 195 S.W. 1033; Main v. Lehman, 243 S.W. 91, 294 Mo. 579; Mullen v. Sensenbrenner Mercantile Co., 260 S.W. 982; Vogt v. Wurmb, 300 S.W. 278, 318 Mo. 471; Cash v. Sonken-Galamba Co., 17 S.W.2d 927, 322 Mo. 349; Paubel v. Hitz, 96 S.W.2d 369, 339 Mo. 274; Ilgenfritz v. Mo. P. & L. Co., 101 S.W.2d 723, 340 Mo. 648; Boyd v. Logan Jones Dry Goods Co., 104 S.W.2d 348, 340 Mo. 1100; Lindquist v. Kresge Co., 136 S.W.2d 303, 345 Mo. 849; Murray v. D'Oench Co., 147 S.W.2d 623, 347 Mo. 365; Iman v. Freund Bread Co., 58 S.W.2d 477, 332 Mo. 461; Carle v. Akin, 87 S.W.2d 406; Pedigo v. Roseberry, 102 S.W.2d 600, 340 Mo. 724; Rose v. Thompson, 141 S.W.2d 824, 346 Mo. 395. (2) The court erred in granting a new trial as to appellant, Keltner, for the reason that the testimony only showed that appellant, Keltner, was the manager of the mill and the testimony did not show that said appellant had the exclusive control of the mill to the exclusion of her employer and the owner of the mill and, therefore, the plaintiff made no case of negligence against said appellant. Lambert v. Jones, 98 S.W.2d 752, 339 Mo. 677; Ryan v. Standard Oil Co., 144 S.W.2d 170. (3) The court erred in sustaining plaintiff's motion for new trial as to appellant, Moundridge Milling Company, without assigning any specific reason or reasons therefor which action is in violation of Section 1169, Revised Statutes of Missouri, 1939, thereby throwing on the appellant milling company the burden of establishing that none of the 12 grounds set out in plaintiff's motion for new trial constituted or indicated error in the trial of the case on the part of the trial court. Sec. 1169, R. S. 1939; King v. Kansas City Life Ins. Co., 164 S.W.2d 458; Webster's New International Dictionary.

Spurgeon L. Smithson for respondent.

(1) The court did not err in refusing to give a demurrer at the close of all the evidence in favor of defendant, Moundridge Milling Company. Long v. F. W. Woolworth Co., 159 S.W.2d 619; Stevenson v. Kansas City Southern Ry. Co., 159 S.W.2d 260; Devine v. Kroger Grocery & Baking Co., 162 S.W.2d 813; Emery, Bird, Thayer Dry Goods Co. v. Shain, 154 S.W.2d 775; Northern v. Chesapeake & Gulf Fisheries Co., 8 S.W.2d 982, 320 Mo. 1011. (2) The court did not err in granting a new trial as to the defendant, Keltner, because a jury case was made against her and the court improperly sustained her demurrer. Stith v. J. J. Newberry Co., 79 S.W.2d 447. (3) The court complied with Section 1169, Revised Statutes of Missouri, 1939, in assigning reasons for sustaining the motion for new trial as to defendant, Moundridge Milling Company. King v. Kansas City Life Ins. Co., 164 S.W.2d 458.

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

OPINION

BARRETT

To recover for injuries sustained when he fell in a mill at Pleasant Hill, Missouri, William Giles instituted this action against the Moundridge Milling Company and its manager, Ernestine J. Keltner. At the close of all the evidence the trial court indicated its intention of giving Miss Keltner's peremptory instruction in the nature of a demurrer to the evidence and Giles took an involuntary nonsuit as to her. Nine of the jury found against Giles and in favor of the milling company. He filed a motion for a new trial as to the Moundridge Milling Company and a motion to set aside the involuntary nonsuit as to Miss Keltner. The trial court sustained both these motions and the milling company and its manager, Miss Keltner, appeal.

In his motion for a new trial as to the milling company Giles set forth twelve grounds or reasons for the motion and the record recites that the motion "was by the court sustained for all reasons set forth therein." The appellant milling company assigns this ruling as error and contends that the effect of the court's ruling was to sustain the plaintiff's motion for a new trial without assigning any specific reason or reasons therefor and that in so doing the court violated the statute requiring the court's order to "specify of record the ground or grounds on which said new trial is granted." Mo. R. S. A., Sec. 1169; King v. Kansas City Life Ins. Co., 350 Mo. 75, 164 S.W.2d 458. The respondent, Giles, contends that the court's order assigning reasons is a compliance with the statute and the ruling of the King case. Furthermore, the respondent contends that the verdict in favor of the milling company was against the weight of the evidence and that two erroneous instructions were given on behalf of the appellants and thereby the respondent seeks to demonstrate the propriety of the court's action and, in addition, sustain his burden of pointing out assignments in the motion for a new trial which should have been sustained. King v. Kansas City Life Ins. Co., supra; Dove v. Atchison, T. & S. F. Ry. Co., 349 Mo. 798, 163 S.W.2d 548.

In this instance there is a strong probability that the court's order sustaining the motion for "all reasons set forth therein" is not within the intended spirit of the statute and ruling of the King case because at least six of the assigned grounds are without merit and even without point and no effort is made to justify those reasons here. Yet it cannot be denied that the order is a technical and literal compliance with the statute which only requires the court's order to "specify of record the ground or grounds on which said new trial is granted." Mo. R. S. A., Sec. 1169; King v. Kansas City Life Ins. Co., 350 Mo. 75, 164 S.W.2d l. c. 464. Three of the assignments in the motion for new trial and presumably three of the reasons for the court's order were, in effect, that the verdict for the appellant was against the weight of the evidence. The last ground set forth in the motion and presumably one of the reasons included in the court's order is that "the verdict is unsupported by substantial evidence." It may be that the latter assignment in the motion and as one of the court's reasons is equal to an assignment or reason that "there was no substantial evidence" and means that there was no evidence whatever to support the jury's verdict for the appellant. King v. Kansas City Life Ins. Co., 350 Mo. 75, 164 S.W.2d l. c. 459, 461. See, however, State v. Gregory, 339 Mo. 133, 96 S.W.2d 47. If so it demonstrates that a technical compliance with the statute is not always a specification of grounds or reasons within its intended meaning. If the specification is subject to that construction and has meaning we might have to consider whether we would continue to follow the view that an assignment or reason that there was no evidence conflicts with and erases the specified reason that the verdict was against the weight of the evidence leaving the former only for consideration. Compare: King v. Kansas City Life Ins. Co., 350 Mo. 75, 164 S.W.2d l. c. 461; Schroeder v. Rawlings, 344 Mo. 630, 127 S.W.2d 678 and Crawford v. Kansas City Stockyards Co., 215 Mo. 394, 114 S.W. 1057; Gates v. Dr. Nichols' Sanatorium, 331 Mo. 754, 55 S.W.2d 424. But, as Judge Frank said, "Plaintiff's first contention is that the verdict in defendant's favor is not supported by substantial evidence. The sufficiency of the evidence to support the verdict in defendant's favor is not an open question in this court; therefore we need not concern ourselves about what the evidence showed in that regard. The burden was not on the defendant, but was on the plaintiff to make out the case stated in his petition. In a case where the allegations of the petition are denied by the answer, and the plaintiff offers oral evidence tending to support the allegations of the petition, the defendant is entitled to have the jury pass upon the credibility of such evidence even though he should offer no evidence himself. The court has no right to tell the jury that it must believe the witnesses. . . . The only claim made respecting such evidence is that it was not sufficiently substantial to support the verdict in defendant's favor. Whether or not the verdict was against the weight of the evidence was a proper question for the trial court, but for reasons heretofore stated, this court has no authority to determine it." Cluck v. Abe, 328 Mo. 81, 84, 86, 40 S.W.2d 558; Connole v. E. St. L. & Sub. Ry. Co., 340 Mo. 690, 102 S.W.2d 581. Compare to the exceptional circumstance instanced by Magoffin v. Missouri Pac Ry. Co., 102 Mo. 540, 15 S.W. 76. Only three instructions were given for the defendant and two of those were on the burden of proof. There was no instruction on contributory negligence. There were no withdrawal instructions, either offered or given. Consequently, there was no issue in the case upon which the court could have directed a verdict for the plaintiff. Certain it is that the court could not have done so under this record for the reason that there was no evidence whatever to support a verdict for the defendant. The consequence is that one of the trial court's reasons for granting the plaintiff a new...