Hughes v. St. Louis Nat. League Baseball Club

• Decision Date: 14 November 1949
• Docket Number: 41511
• Citation: 224 S.W.2d 989,359 Mo. 993
• Parties: Myrtle Hughes, Plaintiff-Appellant, v. St. Louis National League Baseball Club, Inc, (a Corporation), Defendant-Respondent
• Court: Missouri Supreme Court

224 S.W.2d 989

359 Mo. 993

Myrtle Hughes, Plaintiff-Appellant, v. St. Louis National League Baseball Club, Inc, (a Corporation), Defendant-Respondent

No. 41511

Supreme Court of Missouri

November 14, 1949

Rehearing Denied December 12, 1949.

Appeal from Circuit Court of City of St. Louis; Hon. William L Mason, Judge.

Reversed and remanded.

SYLLABUS

After a verdict for plaintiff the trial court sustained defendant's motion to set aside the verdict and entered judgment for defendant. The trial court should have ruled defendant's alternative motion for a new trial, but the issues raised in said motion are before the appellate court and may be briefed. Plaintiff was knocked down and injured as she was leaving defendant's baseball park by a group of boys who had engaged in horseplay while waiting unattended for employment to gather up seat cushions. There was sufficient evidence to make a submissible case, but plaintiff's instruction was erroneous in failing to require a finding that defendant had knowledge of similar prior conduct of the cushion boys. Reversed and remanded for a new trial.

Lashly, Lashly, Miller & Clifford, John H. Lashly, John B. Sharpe and M. P. Phillips for appellant.

(1) Plaintiff's petition alleges that the defendants failed to use reasonable care commensurate with the conditions and circumstances present to protect plaintiff from injury by the conduct of others, in this case employees of the defendant, while plaintiff was a business invitee within the enclosed ball park of the defendant in attendance at the game and while leaving the park upon conclusion of the game, and that this failure constituted negligence and therein states a cause of action. 52 Am. Jur., Theatres, Shows, Exhibitions, etc., secs. 10, 52, 65; Hudson v. Kansas City Baseball Club, 349 Mo. 1215, 164 S.W.2d 318; Hill v. Merrick, 147 Ore. 244, 31 P.2d 663, 98 A.L.R., note at 557; Blaine v. Huttig Sash & Door Co., 105 S.W.2d 947; Gilmore v. Ring Const. Co., 61 S.W.2d 764, 227 Mo.App. 1217; Olds v. St. Louis Natl. Baseball Club, 104 S.W.2d 746; Olds v. St. Louis Natl. Baseball Club, 119 S.W.2d 1000; Easler v. Downie Amusement Co., 125 Me. 334, 133 A. 905, 53 A.L.R. 847; Quinn v. Smith Co., Inc., 57 F.2d 784; Murphy v. Winter Garden, 280 S.W. 444. (2) In reviewing a ruling on the motion for directed verdict after verdict and judgment for plaintiff, the plaintiff is entitled to every inference that may reasonably be drawn from the evidence in support of the verdict of the jury and judgment thereon. Larson v. Metropolitan R. Co., 110 Mo. 234, 19 S.W. 416; Pevesdorf v. Union Elec. L. & P. Co., 333 Mo. 1155, 64 S.W.2d 939, and cases digested under sec. 927 (5) Appeal and Error, Mo. Digest. (3) The defendant offered no evidence, conceding that plaintiff had offered all the witnesses and that defendant knew of no others, and thereupon rested its case with a request for a directed verdict under the law, the pleadings and the evidence, as the evidence does not establish any negligence on the part of the defendants; the case having thereafter gone to the jury, and the jury having found for the plaintiff, the court erred in sustaining the defendant's request for a directed verdict because there is substantial evidence in the record to sustain the allegations of plaintiff's petition. Rexford v. Philippi, 337 Mo. 389, 84 S.W.2d 628, and cases digested under sec. 1001 (1) Appeal and Error, Mo. Digest.

Carter, Bull, Garstang & McNulty for respondent; David A. McMullan and Doris J. Banta of counsel.

(1) An employer is not responsible for the acts of persons who are awaiting employment or who are enroute to their employment. Dickerson v. Bornstein, 144 Ky. 19, 137 S.W. 773; Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909; Futterman v. Western Union Telegraph Co., 43 F.Supp. 729; Green v. Western Union Telegraph Co., 58 S.W.2d 772; Harrington v. Border City Mfg. Co., 240 Mass. 170, 132 N.E. 721. (2) An employer is not liable for playful acts of employees, even while employees are on duty. Turner v. American District Teleg. & Messenger Co., 94 Conn. 707, 110 A. 540; Chiles v. Met. Life Ins. Co., 230 Mo.App. 350, 91 S.W.2d 164; Galveston, H. & S.A. Ry. v. Currie, 100 Tex. 136, 96 S.W. 1073; Goodloe v. Memphis & C.R. Co., 107 Ala. 233, 18 So. 166; Phillips v. Western Union Telegraph Co., 270 Mo. 676, 195 S.W. 711; Smith v. Western Union Telegraph Co., 232 S.W. 480. (3) An owner of business premises upon which a crowd collects is not liable for injuries resulting from the conduct of such crowd or of some members thereof where their acts are unauthorized and he has no reason to anticipate such conduct. Lord v. Sherer Dry Goods Co., 205 Mass. 1, 90 N.E. 1153; F.W. Woolworth & Co. v. Conboy, 170 F. 934; Kerns v. Dykes, 226 Mo.App. 912, 48 S.W.2d 183; 34 Am. Jur. 764; 45 C.J. 879. (4) Plaintiff did not make out a case as she failed to prove that defendant knew or was chargeable with knowledge that the boys in question in this case behaved in a manner dangerous to patrons. Restatement of the Law of Torts, sec. 343; Lappin v. St. Louis Natl. League Baseball Club, 33 S.W.2d 1025. (5) In reviewing a ruling on the motion for directed verdict after verdict and judgment for plaintiff, the plaintiff's evidence should be regarded in the light most favorable to plaintiff. However, the fact that there has been a verdict of the jury and a judgment thereon is immaterial, the appeal in this case being from a ruling of the trial judge and not from the verdict of the jury. (6) Instruction 1 requested by plaintiff and given by the court was erroneous in that it failed to follow the pleadings and proof and was broader than either. It was also erroneous in that it assumed the existence of a controverted fact. Degonia v. St. Louis, I.M. & S. Ry. Co., 224 Mo. 564, 123 S.W. 807; State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722; Krelitz v. Calcaterra, 33 S.W.2d 909; Birdsong v. Jones, 225 Mo.App. 242, 30 S.W.2d 1094; Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562; Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559. (7) Even if there was evidence that on the prior occasions when the boys were seen playing among themselves, a situation was thereby created which was unsafe for patrons of the ball park, Instruction 1 was erroneous for the reason that it did not require such a finding by the jury. Meyer v. Johnson, 224 Mo.App. 565, 30 S.W.2d 641; Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872; Long v. F. W. Woolworth, 232 Mo.App. 417, 109 S.W.2d 85; State ex rel. City of Jefferson v. Shain, 334 Mo. 57, 124 S.W.2d 1194.

OPINION

Hyde, C.J.

Action for damages for personal injuries. Verdict and judgment for plaintiff; but set aside by the trial court on defendant's motion and judgment entered for defendant in accordance with its motion for a directed verdict. Plaintiff appealed and the Court of Appeals reversed and remanded with directions to reinstate the verdict upon compliance by plaintiff with an order of remittitur. (218 S.W.2d 632.) We ordered transfer, under Section 10, Article 5, 1945 Constitution, on application of defendant.

The questions for decision on the merits are whether plaintiff made a case for the jury and whether Instruction No. 1 was erroneous. We must also determine what is preserved for appellate review when a defendant's motion for judgment in accordance with his motion for directed verdict is sustained and its motion for new trial is overruled.

After verdict and judgment for plaintiff, defendant filed a motion to set aside verdict and judgment and to have judgment entered in accordance with its motion for a directed verdict, and in the alternative a motion for new trial in the event the motion to set aside was not sustained. (See Sec. 847.113 Mo. R.S.A.) The motion for new trial alleged error in plaintiff's instructions. The Court sustained the motion to set aside and entered judgment for defendant. It also overruled defendant's motion for new trial.

It was proper for the Court to act on the motion for new trial by overruling it, after sustaining the motion to set aside the verdict and judgment. It was its duty to dispose of it in some manner because all after trial motions should be decided together. The motion for new trial is the basic after trial motion under our Code to preserve trial errors for appellate review; and when disposed of makes the judgment (against which it is directed) final. [Sec's. 847.116 and 847.118 Mo. R.S.A.; S.Ct. Rule 3.24; Seabaugh's Dependents v Garver Lumber Co., 355 Mo. 1153, 200 S.W.2d 55.] The Court could have, and our ruling (hereinafter stated) is that it should have overruled the motion to set aside verdict and judgment and sustained the motion for new trial because of prejudicial error in the main instruction. If it had sustained the motion for new trial, and made no order on the motion to set aside, the result would have been the same because Rule 3.24 provides that any other authorized after trial motion not passed on when the motion for new trial is disposed of "shall be deemed overruled as of the same date." However, when the Court believes that the motion to set aside should be sustained but also finds error in instructions, it would be best for it to sustain the motion to set aside and also sustain the motion for new trial, making its ruling thereon in the alternative (specifying its grounds for granting a new trial) to be effective in the event its judgment entered on sustaining the motion to set aside be reversed. [Johnson v. Kansas City Public Service Co. (Mo. Sup.) 214 S.W.2d 5; Mongomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147; Caddell v. Gulf, M. & O.R. Co. (Mo. App.) 217 S.W.2d 751.] It is suggested that what we said in the Johnson case about...