Herries v. Bond Stores

• Decision Date: 02 July 1935
• Citation: 84 S.W.2d 153,231 Mo.App. 1053
• Parties: VIOLA C. HERRIES, RESPONDENT, v. BOND STORES, INCORPORATED, a Corporation, Appellant
• Court: Missouri Court of Appeals

84 S.W.2d 153

231 Mo.App. 1053

VIOLA C. HERRIES, RESPONDENT, v. BOND STORES, INCORPORATED, a Corporation, Appellant

Court of Appeals of Missouri, St. Louis

July 2, 1935

Rehearing Denied July 16, 1935.

Appeal from the Circuit Court of the City of St. Louis.--Hon. Robert W. Hall, Judge.

AFFIRMED AND REMANDED.

Action affirmed and cause remanded.

Wilton D. Chapman for appellant.

(1) The trial court erred in granting the plaintiff a new trial, and where the granting of a new trial is shown to be an abuse of discretion of the trial court the appellate tribunal will intervene. McDonald v. O'Day, 319 Mo. 857, 5 S.W.2d 125; Scott v. Kline's, Inc., 284 S.W. 831 (Mo. App.); Borack v. Mosler Safe Co., 288 Mo. 83 231 S.W. 623; Herbert v. Hawley, 32 S.W.2d 1095 (Mo App.); Lyons v. Corder, 253 Mo. 539, 162 S.W. 606; Hayland Flour Mills Co. v. Mo. Pacific R. R. Co., 222 Mo.App. 599, 5 S.W.2d 125; Sparkman v. Wabash R. R Co., 191 Mo.App. 463, 177 S.W. 703; Berkshire v. Holcker, 202 Mo.App. 433, 216 S.W. 556. (2) There was no evidence to support a finding for plaintiff, and defendant's demurrer in the nature of a peremptory instruction at the close of the entire case should have been given. Kilgore v. Shepard Co., 53 Rhode Island 151, 158 A. 720; Thompson v. City of Lamar, 322 Mo. 514, 17 S.W.2d 960; Majors v. Ozark Power & Water Co., 205 Mo.App. 337, 222 S.W. 501; Lockart v. Board of Education, 243 N.Y. 642; Pronnecke v. Westliche Post Publishing Co., 220 Mo.App. 640, 291 S.W. 139; Byers v. Essex Investment Co., 281 Mo. 375, 219 S.W. 570. There is no substantial evidence to support a verdict for plaintiff, and it appears that a verdict for plaintiff could not be allowed to stand, and the case should be reversed outright. McGrath v. Transit Co., 197 Mo. 97, 94 S.W. 872; Kerns v. Dykes, 226 Mo.App. 912, 48 S.W.2d 183; State ex rel. v. Trimble, 322 Mo. 318, 18 S.W.2d 4; Polokoff v. Sanell, 52 S.W.2d 443, l. c. 446; Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133, 31 S.W.2d 21, l. c. 24, 25; Ottomeyer v. Pritchett, 178 Mo. 160.

S. D. Flanagan for respondent.

(1) It is sufficient if the injuring agency was in the control of defendant at the time of the negligent act which caused the injury, although not in his control at the time of the accident. 45 C. J. 1216; McCloskey v. Koplar, 46 S.W.2d 557, l. c. 560, 329 Mo. 527; Goldman etc. Bottling Co. v. Sindell, 140 Md. 488, 117 A. 866; Rost v. Kee etc. Dairy Co., 216 Ill.App. 497. (2) Plaintiff, by showing that she was a customer in defendant's store and that she sat upon a chair offered her by defendant's salesman, whereupon it collapsed, causing plaintiff to fall to the floor and be injured, makes a case for the jury under the doctrine of res ipsa loquitur. Fox v. Bronx Amusement Co., 9 Ohio App. Rep. 426; Moore v. Clagett, 48 App. D. C. 410; Larabee v. Des Moines Tent & Awning Co., 189 Iowa 319, 178 N.W. 373; Riggs v. Meeker, 8 S.W.2d 1035; Lyttle v. Denny, 222 Pa. St. Rep. 395, 71 A. 841, 20 L.R.A. (N. S.) 1027. (3) Since plaintiff made a case for the jury under the doctrine of res ipsa loquitur, the granting of a new trial by the trial court upon the ground that the verdict was against the weight of the evidence will not be interfered with on appeal. Stewart v. Carrothers, 37 S.W.2d 498; Baumgarner v. Ekstrum, 67 S.W.2d 520; Leavel v. Johnston, 232 S.W. 1064, 209 Mo.App. 197.

HOSTETTER, P. J. Becker and McCullen, JJ., concur.

OPINION

HOSTETTER, P. J.

This action was begun in the circuit court of the city of St. Louis on the 10th day of May, 1932, and is a suit for damages on account of personal injuries alleged to have been sustained by plaintiff while a customer in the defendant's store.

The facts as shown by the testimony are substantially as follows:

That plaintiff accompanied her husband to the store belonging to defendant to assist him in the selection of a suit of clothes which he was desirous of purchasing; that when she and her husband entered the store, the salesman went over to another part of the room and procured a chair and brought it and invited the plaintiff to be seated. Plaintiff sat down in the chair and it immediately collapsed and threw her backward on the floor and she sustained injuries. She was assisted to her feet by the salesman and her husband. She saw the chair, but never examined it, after she was assisted up. Another chair was brought to her.

On cross-examination the plaintiff testified that when the clerk brought her the chair to sit on she didn't see anything about it that would indicate it was going to break; that it looked like any other chair that they have in downtown stores; that she saw nothing wrong with the chair and sat down on it and the front part, either one, or both legs, collapsed, and she slid down to the floor; that she did not strike her head and was not unconscious.

The defendant's testimony was to the effect that two boy porters, Penny and Petty, dusted the chairs each morning and that they never noticed anything wrong with this particular chair or any of the chairs; that if they had noticed anything wrong with them they would have taken them off the floor.

Defendant offered no evidence as to what the defects were in the chair, if any, merely offering testimony to the effect that the collapsed chair was taken out by one of the employees. No testimony was offered by defendant as to any inspection of the chair to determine what caused its collapse, and none of its witnesses knew what ultimately became of the collapsed chair and it was not produced at the trial.

In the petition the plaintiff pleaded only general negligence relying on the doctrine of res ipsa loquitur.

At the close of all the testimony defendant offered an instruction in the nature of a demurrer to the evidence, which was refused.

The jury returned a verdict in favor of the defendant.

Thereupon, plaintiff duly filed her motion for a new trial and the court sustained it on the ground that the verdict of the jury was against the weight of the evidence. From this action of the court defendant brings the cause to this Court by appeal for review.

It is the contention of defendant that there was no substantial evidence in plaintiff's favor to take the case to the jury, in that the doctrine of res ipsa loquitur did not apply and that defendant's instruction in the nature of a demurrer to the evidence should have been given because there was no evidence introduced by plaintiff to sustain the issues on her part, and that there was no evidence adduced by plaintiff to weigh against defendant's evidence.

Defendant places much reliance on the case of Kilgore v. Shepard Co., 52 R.I. 151, 158 A. 720. That was also a chair-collapsing case. Plaintiff entered the defendant's store for the purpose of purchasing some textile paints which were displayed on a table. The saleswoman was not present and plaintiff on her own initiative moved a chair about six inches from the table and sat down on it and it collapsed and she fell to the floor and sustained injuries and was denied a recovery. The Court held that the doctrine of res ipsa loquitur did not apply principally for the reason that both inspection and user must have been in the control of the party charged with neglect at the time of the injury, whereas, "the chair was under her exclusive control and use from the time she moved it from the table . . . and was voluntarily used by plaintiff without any suggestion on the part of the saleswoman."

We do not regard the Kilgore case, supra, as being in line with the general current of authority on this subject. The facts are quite similar to the facts in the instant case, with this notable exception, that in the Kilgore case the saleswoman was out when the plaintiff entered the store and the plaintiff selected her own chair and sat in it, whereas, in the instant case the salesman went to the opposite side of the room from where plaintiff and her husband were, and selected the chair himself and brought it to plaintiff to sit down on. An examination of authorities in other jurisdictions will demonstrate that the Kilgore case, supra, is out of line with the general current of authorities.

In Rost v. Kee & Chapell Dairy Company, 216 Ill.App. 497, the salient facts are as follows:

Plaintiff was a patron of a dairy company and drank from a bottle of milk furnished by it and swallowed some small sharp jagged pieces of glass and was injured thereby. Her recovery in the lower court was affirmed in the appellate court, one judge dissenting, but certiorari was later denied by the Illinois Supreme Court, thus making the majority opinion final.

The majority opinion holds that it cannot be said with reason that any one other than the defendant was to blame; that absolute, positive, ocular proof the law, wisely, does not require; that negligence does not have to be proven beyond a reasonable doubt; that circumstantial evidence is sufficient; that res ipsa loquitur is ancient law; that it merely connotes a principle of evidence and generally means inferences we draw from knowledge we obtain through our senses, i. e.: common sense applied to physical things; that the fact that the thing causing the injury being in plaintiff's possession, at the time of the reception of the injury was not important or material, it having been delivered to plaintiff by defendant with the intent that its contents should be drank and consumed.

Even in the dissenting opinion it was said that where there "is an unexplained accident which, according to the common experience of mankind, would not have happened without fault on the part of defendant" the doctrine of res ipsa loquitur might be invoked, citing in support thereof Ash v. Childs Dining Hall Co., 231 Mass. 86, 120 N.E. 396, and St....