Goedecke v. Bi-State Development Agency of Missouri-Illinois, BI-STATE

Decision Date17 January 1967
Docket NumberBI-STATE,No. 32304,MISSOURI-ILLINOIS and H,32304
Citation412 S.W.2d 189
PartiesMarie Margaret GOEDECKE and Ray C. Goedecke, Plaintiffs-Appellants, v.DEVELOPMENT AGENCY OFF. Morgan, Defendants-Respondents.
CourtMissouri Court of Appeals

Gerritzen & Gerritzen, by Ray A. Gerritzen, St. Louis, for appellants.

Vernon Riehl, St. Louis, for respondents.

CLEMENS, Commissioner.

Defendant Bi-State Development Agency of Missouri-Illinois has moved to dismiss this appeal, mainly because the statement of facts in plaintiffs' brief violates Civil Rule 83.05(c), V.A.M.R. That rule requires a concise, narrative statement of the facts relevant to questions presented for determination; it forbids recitation of formal matters. Instead, in 29 numbered paragraphs, plaintiffs' statement summarizes the pleadings, opening statements, voir-dire examination, testimony of each witness, objections, motions, instructions given and refused, arguments, verdict and after-trial proceedings. This violates the rule. However, plaintiffs' brief does reasonably inform defense counsel and this court of the grounds of their appeal. We have decided to deny the motion and consider the merits.

The appeal presents two intertwined issues: Can a verdict stand against the defendant carrier when the jury found in favor of the defendant bus driver on plaintiff's charge of negligently discharging her at an unsafe place? Was the defendant carrier obligated to provide and maintain a safe landing zone for plaintiff passenger to alight from its bus onto a public street?

By Count I plaintiff Marie Margaret Goedecke sued Bi-State and its bus driver H. F. Morgan, claiming that because of their negligence in failing to provide her a safe place to land she was injured when she stepped from a bus onto a rough area of Bi-State's bus passenger zone in a public street. Her evidence showed: She was a passenger on Bi-State's Baden bus driven by its employee, defendant Morgan. She got off when the bus stopped at the intersection of Halls Ferry and Chambers Roads, public streets in an unincorporated area of St. Louis county. In coming to a stop the bus had pulled partly off the blacktop paving onto the graveled shoulder. This area was unmarked but had been designated and used as a bus passenger zone for many years. From the right side of the stopped bus a rocky shoulder extended outward eight feet to a ditch. The county 'took care of the rock.' The underlying layer of the shoulder was hard packed rock, with numerous depressions. Someone--Mrs. Goedecke said 'they'--spread gravel over the area from time to time. It had recently been graveled--no one said by whom--and the fresh gravel covered the depressions, giving the area a level appearance. (There was no evidence of any other conduct of Bi-State relating to the bus passenger zone.) Mrs. Goedecke stepped down from the bus, took another step forward, and fell when her foot sank through soft gravel into a depression. Her injuries are not at issue.

Mrs. Goedecke pleaded and submitted that defendant Morgan and defendant Bi-State, by and through its employee Morgan, were negligent in discharging her at an unsafe place. The jury brought in a verdict against defendant Bi-State, awarding Mrs. Goedecke $2,300 damages; but it found in favor of defendant Morgan. The court followed the verdict and rendered judgment against defendant Bi-State and in favor of defendant Morgan. Mrs. Goedecke was content; she did not file a motion for new trial. Bi-State filed an after-trial motion for judgment, contending that its liability could arise only from the negligence of its driver and that the verdict exonerating the driver from negligence thereby exonerated Bi-State as a matter of law. The trial court agreed, and filed a terse memorandum:

'The Court is of the opinion in that plaintiffs' amended petition alleged and charged Bi-State Development Agency, the corporate defendant, solely and only on the basis of the negligence of its operator, thereby invoking as its sole theory the principle of respondent superior, and likewise, submitted to the jury on that theory only, it is the judgment of this Court that a verdict discharging the operator for whose negligence only it is sought to hold the corporate defendant, there can be no judgment against either defendant. * * *'

The court took away Mrs. Goedecke's judgment and entered judgment in favor of Bi-State. Mrs. Goedecke appeals from that judgment.

It will clear the air to note that one issue of the case has been finally adjudicated below and is not before us: the defendant driver was not negligent on the pleaded and submitted ground of discharging plaintiff at an unsafe place. This, because the jury so found by its verdict in his favor; judgment for him was entered accordingly; Mrs. Goedecke did not file a motion for new trial; and she has not appealed from the judgment in Morgan's favor. That book is closed.

As pleaded and submitted by Mrs. Goedecke, Bi-State's negligence as derivatively based on Morgan's active negligence; but by the verdict and judgment, Morgan was not negligent. So, Bi-State is not liable. Stoutimore v. Atchison, Topeka & Santa Fe Ry. Co., 338 Mo. 463, 92 S.W.2d 658(1); Stokes v. Wabash Ry. Co., 355 Mo. 602, 197 S.W.2d 304, l.c. 308. As said in Presley v. Central Terminal Co., Mo.App., 142 S.W.2d 799(4): 'The verdict of the jury (in favor of the employee) removed the very foundation upon which the charge against defendant Terminal Company of derivative liability rested. The foundation having thus fallen, the superstructure went down with it.'

Mrs. Goedecke now tries to escape this collapse of her case. She points to the principle stated in Devine v. Kroger Grocery & Baking Co., 349 Mo. 621, 162 S.W.2d 813(4--7), and Stokes v. Wabash Ry. Co., supra. There, at 197 S.W.2d l.c. 308, the court declared the general rule as to derivative liability, but added: 'On the other hand, if the liability of the master is not predicated solely upon the negligence of the servant in whose favor a verdict has been found, but as well upon the negligence of another servant, then the...

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