Gilliland v. Bondurant

• Citation: 59 S.W.2d 679,332 Mo. 881
• Decision Date: 20 April 1933
• Docket Number: 32358
• Parties: Josephine Gilliland v. James D. Bondurant, Sr., James D. Bondurant, Jr., and W. P. Bondurant, doing business under the firm and trade name of Palace Bakery, Appellants
• Court: Missouri Supreme Court

59 S.W.2d 679

332 Mo. 881

Josephine Gilliland v. James D. Bondurant, Sr., James D. Bondurant, Jr., and W. P. Bondurant, doing business under the firm and trade name of Palace Bakery, Appellants

No. 32358

Supreme Court of Missouri

April 20, 1933

Appeal from Grundy Circuit Court; Hon. A. C. Knight, Judge.

Affirmed.

S H. Ellison, Andrew Ellison, R. E. Kavanugh and Rieger & Rieger for appellants.

(1) The finding should have been for the defendants on the second count of plaintiff's petition: (a) No fraud was used by defendants in procuring the judgment. Robinson v. Foesch Co., 236 S.W. 332; McFaden v. Simms, 273 S.W 1050. (b) The true facts were stated to the court, in open court, by next friend, or in his presence, and the court approved of the settlement. Authorities above cited. (c) The idea claimed by plaintiff that she thought she was settling her father's case was not induced by defendants, nor did they know that she had such an idea. Bates v Hamilton, 144 Mo. 1. (d) Plaintiff did not plead she had a meritorious case, or that the amount of the judgment was inadequate. Greenard v. Isaacson, 220 S.W. 694; Sawer v. Kansas City, 69 Mo. 46. (2) Defendants demurrer should have been sustained as to the first count for the following reasons: (a) Pleading, as she did, she was both invited and permitted to visit the defendants' premises she pleads she was a licensee, O'Brien v. Transit Co., 212 Mo. 70, and therefore, pleads no negligence against defendant. Carr v. Railroad Co., 195 Mo. 214; Christy v. Price, 7 Mo. 430. (b) Being a licensee she alleges the breach of no duty owing her by defendants. Kelly v. Benas, 217 Mo. 9; Glaser v. Rothschild, 221 Mo. 180; Nivert v. Railroad, 232 Mo. 626. (c) Not making a case on the second count the plaintiff made no case on the first count. (d) There was no evidence that plaintiff, or any member of the class, might be reaching into the crusher at the time it was started. Galliger v. Kroger Co., 272 S.W. 1006; Hall v. Railroad Co., 219 Mo. 553; Majors v. Ozark Co., 222 S.W. 462; Zasemowich v. Am. Mfg. Co., 213 S.W. 803; Monday v. Railway Co., 136 Mo.App. 692. (e) And that theory of negligence was not an issue under the petition. Klein v. Foskin, 13 S.W.2d 664; Kirkland v. Bixby, 222 S.W. 462. (f) Being no better than a licensee the defendants owed plaintiff no duty except to not injure her intentionally. Kelly v. Benas, 217 Mo. 1; Glaser v. Rothschild, 221 Mo. 180; Myers v. Ry. Co., 157 S.W. 362; Carr v. Ry. Co., 195 Mo. 214. (g) The plaintiff was guilty of contributory negligence. Nivert v. Railroad Co., 232 Mo. 626; Murry v. Railroad, 101 Mo. 236; Grossman v. Wells, 282 S.W. 710; Zumault v. Railroad, 175 Mo. 288; Dyrez v. Railroad, 238 Mo. 47. (h) There was no duty to warn plaintiff to not go back and take ice out of the crusher until it became apparent that she intended to do so. Watson v. Railroad, 133 Mo. 251; State v. Ellison, 271 Mo. 474. (i) Plaintiff does not allege that it was negligence to not warn her that the crusher was about to be started. Her petition alleges she had come to see it operate. The negligence she alleges is that she was not warned of prongs on the cylinder. This issue could not be broadened. State v. Ellison, 270 Mo. 645; Mould v. Co., 237 S.W. 203; Gullen v. Johnson, 29 S.W.2d 39. (j) Neither plaintiff, or any other members of the class, or of any class, had ever before gone back to the crusher, and Pierson had no reason for believing that plaintiff would do so. Hight v. Bakery Co., 168 Mo.App. 460. (k) Even if plaintiff was an invitee the defendants owed her no more than ordinary care, and they had the right to test her conduct by that of the majority of her class which remained at the churn. Murphy v. Winter Garden, 280 S.W. 446; Rueter v. Terminal, 261 S.W. 713; Am. Brew. Co. v. Talbot, 141 Mo. 674; Chrismer v. Bell Co., 194 Mo. 212. (l) Plaintiff owed defendants, the teacher, the class and herself the duty to remain at the churn and listen to the instruction, and Pierson had the right to believe she would do so. It is not the law that every one is expected to perform his duty except the party injured. (m) Evidence that there was a sign on the window "Inspection Invited" should not have been considered by the court. It had nothing to do with plaintiff's visit, nor was it of probative value. Sexton v. Railway Co., 245 Mo. 254; Kirk v. Middelbrook, 201 Mo. 288; King v. Railroad Co., 211 Mo. 16. (n) Evidence as to visits of other classes should have not been admitted, and should now be disregarded. Visits by other classes had nothing to do with plaintiff's visit. The facts as to how she came were introduced. Also, her petition alleges she was permitted to come. Lorie v. Lumbermen's Cas. Co., 8 S.W.2d 88. (o) Evidence in regard to giving away ice cream should be disregarded. Plaintiff had gone to the bakery to learn ice cream; it was shown to her, but she was given none. Neither did she claim she even knew that some time other classes had been given any. She was not attracted to the bakery by the hope of getting ice cream, nor was she permitted to come by defendants in order that she might sample its good quality. Pyrtle v. Int. Shoe Co., 291 S.W. 172. (p) There was a fatal variance between the pleading and the proof. Gandy v. Ry. Co., 44 S.W.2d 634; Kitchen v. Schlueter Mfg. Co., 323 Mo. 1179; Nugent v. Milling Co., 131 Mo. 241; Koenig v. Milling Co., 173 Mo. 698. (q) The testimony of plaintiff and her witness that all of the girls got ice out of the crusher, and that there was no ice on the floor is not high grade. Kirk v. Middlebrook, 201 Mo. 288; Grantham v. Gossett, 182 Mo. 674.

A. D. Campbell and John Campbell for respondent.

It is also claimed the court erroneously overruled the motion to elect. This insistence proceeds upon the theory that the allegation referred to states a case based upon an invitation and a case based upon license. What we have said answers that contention. Moreover, after the demurrer and the motion to elect were overruled the defendants answered, thus waiving the point. Buckman v. Bankers' Mortgage Co., 263 S.W. 1048. "We cannot notice the point for the reason that defendant by afterwards answering waived all defects in the petition save want of jurisdiction and failure to state a cause of action." Barnes v. Houchin, 195 S.W. 60. "The only objections under our Code not waived by pleading over are, that the petition does not state facts constituting a cause of action, and that the court has no jurisdiction of the subject-matter." State ex rel. v. Trimble, 262 S.W. 357. Where the owner of premises permits them to be used to further his business, the rule "applicable to that change is that a licensee who goes upon the premises of another at the other's invitation and for that other's purposes is no longer a bare licensee. He becomes an invitee and the duty to take ordinary care to prevent injury is at once raised, and for the breach of that duty an action lies. . . . The word invitation used in the rule covers and includes in it enticement, allurement and inducement if the case in judgment holds such features. Also, the invitation may be implied by a dedication or it may arise from known customary use. . . . So, too, it is held in all the cases that the invitation may be implied by any state of facts upon which it naturally and reasonably arises. Glaser v. Rothchild, 221 Mo. 121; Township Board v. McPherson, 157 S.W. 859.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This is a suit for damages for personal injuries. The petition contained two counts. The first count was an action at law for personal injuries which plaintiff sustained during her minority as the alleged result of defendants' negligence. The second count is a suit in equity to set aside a judgment, rendered for such injuries during plaintiff's minority, in a suit in which her father was named as her next friend.

The second count was first tried and the trial court entered a decree setting aside the former judgment. Thereafter, the court proceeded to try the action at law stated in plaintiff's first count, and rendered a judgment in plaintiff's favor. Defendants appealed to the Kansas City Court of Appeals and the trial court's decree and judgment was affirmed. One of the judges, however, dissented upon the ground that the opinion in affirming the judgment on the first count for plaintiff's injuries was in conflict with the decision of this court in Gandy v. St. Louis & San Francisco Ry. Co., 329 Mo. 459, 44 S.W.2d 634, and Kitchen v. Schlueter Mfg. Co., 323 Mo. 1179, 20 S.W.2d 776. The case was accordingly certified here under the provisions of Section 6 of the Amendment of 1884 of [332 Mo. 886] the Constitution. [Gilliland v. Bondurant (Mo. App.), 51 S.W.2d 559.]

Defendants contend here, as they did in the Kansas City Court of Appeals, that plaintiff was not entitled to the decree rendered by the trial court setting aside the judgment in the suit brought by her next friend during her minority. Upon this proposition, we adopt the complete statement of facts and the able decision thereof by the majority opinion in the Kansas City Court of Appeals as follows:

"The second count is to set aside a judgment rendered in a suit brought by plaintiff's father, as her next friend, against defendants for the damages sustained on account of said injury.

"A demurrer was filed to the second count on the ground that the same did 'not state facts sufficient for the granting of the relief therein prayed,' the point of the demurrer is that 'plaintiff did not plead that she had a meritorious case or that the judgment was inadequate.' No doubt the second count does not contain such allegations in so many words; but the allegations and statement of facts made therein are such...