Hill v. Montgomery

• Decision Date: 06 December 1943
• Docket Number: 38609
• Parties: Uri Hill v. P. V. Montgomery and W. D. McCord, Appellants
• Court: Missouri Supreme Court

176 S.W.2d 284

352 Mo. 147

Uri Hill v. P. V. Montgomery and W. D. McCord, Appellants

No. 38609

Supreme Court of Missouri

December 6, 1943

Motion for Rehearing Denied January 3, 1944.

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Affirmed.

Caldwell Downing, Noble & Garrity, Cowgill & Popham and Sam Mandell for appellants.

(1) Plaintiff having offered evidence of specific negligence is not entitled to invoke the res ipsa loquitur doctrines. Gibbs v. General Mtrs. Corp., 166 S.W.2d 575; Pandjiris v. Oliver Cadillac Co., 339 Mo. 711, 98 S.W.2d 969; Williams v. St. Louis-S.F.R. Co., 337 Mo. 667, 85 S.W.2d 624; Powell v. St. Joseph Ry., L.H. & P. Co., 336 Mo. 1016, 81 S.W.2d 957; Harke v Haase, 335 Mo. 1104, 75 S.W.2d 1001. (2) There was no legal proof that the boy was "caused" or ordered to start the elevator. Adelsberger v. Sheehy, 336 Mo. 497, 59 S.W.2d 644. (3) There was no legal proof of permission to start the elevator. Schide v. Gottschick, 329 Mo. 64, 43 S.W.2d 777; Beitling v. S.S. Kresge Co., 232 Mo.App. 1195, 116 S.W.2d 522. (4) The giving of plaintiff's Instruction I was prejudicial error. The instruction gave the jury a roving commission to find for the plaintiff. Owens v. McCleary, 331 Mo. 213, 281 S.W. 682; Jenkins v. Mo. State Life Ins. Co., 334 Mo. 941, 69 S.W.2d 666; Chambers v. Kupper-Benson Hotel Co., 154 Mo.App. 249, 134 S.W. 45; Hinzeman v. Mo. Pac. R. Co., 182 Mo. 611, 81 S.W. 1134; McDonald v. K.C. Gas Co., 332 Mo. 356, 59 S.W.2d 37; Greenspons v. Hyman, 133 S.W.2d 426; Smith v. Thompson, 346 Mo. 502, 142 S.W.2d 70; Axon v. K.C. Pub. Serv. Co., 142 S.W.2d 342; Trusty "Constructing and Reviewing Instructions," pp. 3-4. (5) The disjunctive submission "caused or permitted" is not sustained by the record. Lindquist v. K.C. Pub. Serv. Co., 169 S.W. 366; Guthrie v. St. Charles, 347 Mo. 1175, 152 S.W.2d 91; Westernhaver v. St. L.-S.F.R. Co., 340 Mo. 511, 102 S.W.2d 661; Wolf v. Payne, 294 Mo. 170, 241 S.W. 915; Callicotte v. Chicago, R.I. & P. Ry. Co., 274 Mo. 689, 204 S.W. 529; Meeker v. Un. Elec. L. & P. Co., 279 Mo. 574, 216 S.W. 923. (6) The jury was not instructed that a verdict could be returned on only one of the two inconsistent theories of submission in the instruction. Satterlee v. St. L.-S.F. Ry. Co., 336 Mo. 943, 82 S.W.2d 69; State ex rel. Dunklin County v. McKay, 325 Mo. 1075, 30 S.W.2d 83; Hendricks v. Calloway, 211 Mo. 536, 111 S.W. 60; Amos v. Fleming, 221 Mo.App. 559, 285 S.W. 134. (7) The giving of plaintiff's Instruction II was prejudicial error. Farthmann v. McMahon, 258 S.W. 61; Sang v. St. Louis, 262 Mo. 454, 171 S.W. 347; Parker v. St. L. Transit Transit Co., 108 Mo.App. 465, 83 S.W. 1016; Trusty "Constructing and Reviewing Instructions," page 259. (8) The verdict was excessive. Dorman v. E. St. L. Ry. Co., 335 Mo. 1082, 75 S.W.2d 854; Cole v. Uhlmann Grain Co., 340 Mo. 277, 100 S.W.2d 311.

Ryland, Stinson, Mag & Thomson, Paul R. Stinson and Lawrence R. Brown for respondent.

(1) Defendants were bound by the law to exercise the highest degree of care to protect plaintiff from injury. Orcutt v. Century Bldg. Co., 201 Mo. 424, 99 S.W. 1062; Cooper v. Realty Co., 224 Mo. 709, 123 S.W. 848; Luckel v. Century Bldg. Co., 177 Mo. 608, 76 S.W. 1035; Weatherman v. Handy, 198 S.W. 459; Chambers v. Kupper-Benson Co., 154 Mo.App. 249, 134 S.W. 45. (2) All testimony supporting plaintiff's case must be taken as true and that against him as untrue, and every reasonable inference resolved on plaintiff's side. Stevens v. Meadows, 340 Mo. 252, 100 S.W.2d 281; Brock v. Railroad Co., 330 Mo. 918, 51 S.W.2d 100; In re Estate of Thomasson, 346 Mo. 911, 144 S.W.2d 79; Macklin v. Construction Co., 326 Mo. 38, 31 S.W.2d 14; Pevesdorf v. Un. Elec., 333 Mo. 1155, 64 S.W.2d 939; Good v. Railroad, 339 Mo. 330, 97 S.W.2d 612; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644; Vaseleou v. St. Louis Realty & Sec. Co., 344 Mo. 1121, 130 S.W.2d 538; Rainwater v. Wallace, 169 S.W.2d 450; Pashea v. Term. Ry. Assn. of St. Louis, 165 S.W.2d 691. (3) David Raab's act of starting the elevator, caused and permitted as it was by defendants' employee, in his presence, was as a matter of law the act of the employee for which defendants are liable. James v. Muehlebach, 34 Mo.App. 512; Slothower v. Clark, 191 Mo.App. 105, 179 S.W. 55; Haynie v. Jones, 233 Mo.App. 948, 127 S.W.2d 105; McKerall v. Railroad, 257 S.W. 166; Blumenfeld v. Meyer-Schmid Grocery Co., 206 Mo.App. 509, 230 S.W. 132; Haehl v. Wabash Ry. Co., 119 Mo. 325, 24 S.W. 737; Weatherman v. Handy, 198 S.W. 459; Schide v. Gottschick, 329 Mo. 64, 43 S.W.2d 777; Semper v. The American Press, 217 Mo.App. 55, 273 S.W. 186. (4) Although it was not necessary to have done so, the case was submitted to the jury under instructions requiring a finding that the defendants' employee was acting in the scope of his authority. Voegeli v. Marble Co., 49 Mo.App. 643; Grayson v. Transit Co., 100 Mo.App. 60, 71 S.W. 730; Travers v. Kan. Pac. Ry., 63 Mo. 421. (5) Plaintiff's Instruction 1 properly submitted the case to the jury. The use of the phrase "caused or permitted" did not submit two theories, inconsistent or otherwise, of recovery. Webster's Dictionary; Webb v. Strobach, 143 Mo.App. 459, 127 S.W. 680; Louisville & Nashville R. Co. v. Smith, 163 Ala. 141, 50 So. 241; Coon v. Froment, 49 N.Y.S. 305; Olbert v. Key, 93 S.W.2d 1048; Carroll v. Allen, 20 R.I. 144. (6) If the phrase "caused or permitted" did submit two theories to the jury, such submission in the disjunctive was proper. Murphy v. Loeffler, 327 Mo. 1244, 39 S.W.2d 550; Robertson v. Atchison, 105 S.W.2d 996; Martin v. Springfield City Water Co., 128 S.W.2d 674; Jenkins v. Mo. Life Ins. Co., 334 Mo. 941, 69 S.W.2d 666; McDonald v. K.C. Gas Co., 332 Mo. 356, 59 S.W.2d 37. (7) The giving of plaintiff's Instruction 2 was proper. Sang v. St. Louis, 262 Mo. 454, 171 S.W. 347; Detchemendy v. Wells, 253 S.W. 150; Haley v. Federal Truck Co., 274 S.W. 507; Sotebier v. St. Louis Transit Co., 203 Mo. 702, 102 S.W. 651. (8) The verdict was not excessive. Span v. Jackson, 322 Mo. 158, 16 S.W.2d 190; Dorman v. Railway Co., 335 Mo. 1082, 75 S.W.2d 854; Klotsch v. Collier & Son Corp., 349 Mo. 40, 159 S.W.2d 589; Brucker v. Gambro, 9 S.W.2d 918; Byers v. St. Louis Pub. Serv. Co., 334 Mo. 278, 66 S.W.2d 894; Summa v. Morgan Real Estate Co., 165 S.W.2d 390.

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

OPINION

WESTHUES

Respondent Hill obtained a judgment against appellants in the sum of $ 19,500.00 as damages for personal injuries sustained when he fell from a passenger elevator at appellants' hotel. An appeal was duly taken.

The main contention of the defendants on this appeal is that the evidence was insufficient to establish actionable negligence on the part of the defendants. The principal facts were not in dispute. Plaintiff Hill was 86 years of age at the time he sustained the injuries complained of, which occurred on July 24, 1941. He had lived at the Brookside Hotel, in Kansas City, Missouri, for many years. Defendants were the owners and operators of the hotel, which accommodated transient as well as permanent guests. Hill occupied a room on the fourth floor. A passenger elevator was provided and operated by the defendants for the accommodation of the guests. On the night of July 24, 1941, plaintiff Hill had spent some time on a porch located on the ground floor of the hotel. Shortly after 9 o'clock, desiring to retire to his room, he proceeded to the elevator, which was standing at the lobby floor with the door open. A number of guests preceded plaintiff into the elevator. As plaintiff attempted to step into the elevator, and at the moment he had one foot on the elevator and the other on the lobby floor, the elevator moved upward, causing plaintiff to be thrown violently upon the tile floor of the lobby. David Raab, a boy about 12 years old, testified that he started the elevator at the time plaintiff was injured. Raab was a son of one of the permanent guests of the hotel. Thus far the facts were not in dispute. The contested issue in the case was whether Samuel Brown, about 19 years of age, who was an employee at the hotel, and whose duty it was to operate the elevator, directed or permitted David Raab to start the elevator. David Raab testified that Brown had frequently permitted him to run the elevator, and on this occasion, he (Raab) was at the controls when plaintiff was getting on, and Brown, who was on the elevator about two feet from Raab, holding a pitcher of ice, said to the witness, "Go on." Whereupon, he turned the control and the elevator moved upward, throwing plaintiff to the floor of the lobby.

Appellants earnestly insist that this witness Raab destroyed his own evidence with reference to Brown's telling him to go on. It is contended that the witness testified directly to the opposite on cross-examination and, therefore, the evidence on that point given on direct examination cannot be considered of any probative value. There was no other evidence directly on this question and, therefore, the evidence was vital to plaintiff's case. For fear that we may not present the question before us in an intelligent manner by giving the substance of the direct and cross-examination, we quote the evidence on this point. On direct examination, Raab testified:

"Q. (By Mr. Stinson) Were you in the elevator at the time Mr Hill was injured? A. Yes.

"Q. Who else was in there? A. The elevator boy and another man.

"Q. Who was the elevator boy, David? A. Sam.

"Q. Sam? A. Yes.

"Q. Was he a white boy or a colored boy? A. Colored.

"Q. Who started the elevator when Mr. Hill was injured? A. I did.

"Q. You started it? A. Yes, sir.

"Q. Did anybody tell you to start it? A. Sam.

"Q. Sam did? A. Yes.

"The Court: Now, who...