Jackson v. Cherokee Drug Co., 32884

• Decision Date: 15 October 1968
• Docket Number: No. 32884,32884
• Citation: 434 S.W.2d 257
• Parties: Arline JACKSON, Plaintiff-Respondent, v. CHEROKEE DRUG COMPANY, a Corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 257

434 S.W.2d 257

Arline JACKSON, Plaintiff-Respondent, v. CHEROKEE DRUG COMPANY, a Corporation, Defendant-Appellant.

No. 32884.

St. Louis Court of Appeals, Missouri.

Oct. 15, 1968.

Motion for Rehearing or to Transfer to Supreme Court Denied

Nov. 25, 1968.

Ackerman, Schiller & Schwartz, Clayton, for defendant-appellant.

Glen C. Schomburg, Kirkwood, for plaintiff-respondent.

JACK A. POWELL, Special Judge.

This is an appeal from a judgment for personal injuries in favor of plaintiff in the amount of $9,500.00, which was entered after plaintiff accepted a remittitur of $2,500.00 from the jury verdict of $12,000.00.

On January 9, 1965, plaintiff entered defendant's drugstore as a customer and upon leaving the store she alleged that the door closed on her and struck her suddenly, violently, and with excessive force causing her to fall and be injured. Plaintiff alleged '* * * That the said front door and automatic stop or check were then and there in a defective, dangerous and unsafe condition in that said door, when opened, would close suddenly, violently, and with great and excessive force * * *.'

Among the specific allegations of negligence alleged is the following: 'a) Defendant knew or by the exercise of ordinary care could have known of the dangerous and defective condition of said door and the automatic check or stop attached thereto, in time thereafter to have remedied the same * * *.'

Defendant first complains that the trial court erred in not directing a verdict for defendant. This complaint has two prongs; the first being that the evidence failed to establish that defendant had actual or constructive notice that its door check was defective, dangerous and unsafe; and the second being that plaintiff was guilty of contributory negligence as a matter of law in that the condition of the slamming door on defendant's premises was a condition of which plaintiff had knowledge equal to defendant.

We direct our attention to the facts essential to the determination of these points.

The defendant's drugstore was located at the corner of Cherokee and California Streets in St. Louis, Missouri. The entrance had but one door, which is the door in question. It hinged on the right as one entered the store. The door was 36 to 38 inches in width and was equipped with a thumb latch door handle. It also had a Yale door check which defendant's manager testified he put on the door two or three years prior to the incident in question. The purpose of the door check was to control the closing of the door.

Plaintiff testified that she entered the store carrying a mop and four glasses in a paper bag. She also had a purse. While in the store she purchased some shampoo. As she was leaving the store she was carrying all the packages and her purse in her right hand and arm. Another person had just entered the store and plaintiff grabbed the door handle with her left hand before the door closed. Plaintiff opened the door about two feet but no more so as not to strike the person who had just entered. She stepped out with her left foot and her right foot was in the air to step out when she was struck by the door. At the time she was struck she had let loose of the door handle with her left hand and had started holding the packages. The left portion of her body was struck first by the door. 'It was very violent; it threw me out of the door and I fell on my knee.' She testified she fell on her right knee and her head hit the iron post on the outside of the building. She was dazed. Her head was bleeding profusely. She was down on both knees.

Plaintiff did not in her testimony attempt to explain what caused the action of the door.

Plaintiff's husband testified that prior to January 9, 1965, he had been in the drugstore possibly 20 to 25 times, the last time being possibly a day or so prior to January 9, 1965. He testified '* * * The door closed slowly at first and banged just like that (demonstrating), and I mean it was violent. It rattled the glass; it could be heard half a block. * * * It was going on all summer that we lived--the three months of summer that we were there.' He testified it was in this condition on the last occasion he was in the store prior to the incident, and that it was in this condition when he went to the store after his wife's accident, at which time she was in a doctor's office up over the drugstore.

Anna Hess, a Friend of plaintiff's, who lived acoss the street from the drugstore and in an apartment up over the apartment occupied by plaintiff, testified that for several months prior to January 9, 1965, she heard the door slam when people went in and out. She testified that she also observed the slamming of the door. Because she knew it was slamming, she held onto the side of the door when going out of the drugstore.

Judy Smiley, plaintiff's daughter, age 18 at the time of the trial, testified as to how she went through the door. 'Well, I walk with it, I did, I get in front of the door and I walk with it (indicating).' She had been in the drugstore on occasions without her mother and she knew the door made a bang. She did not hear any slamming of the door on the one occasion that her mother was in the store with her.

Defendant called three witnesses to testify as to the operation of the door in question. The defendant's evidence was that the door in question did not slam or bang, that the door did not close with excessive force.

In considering defendant's first contention that the plaintiff failed to make a submissible case, defendant recognizes the rule that we must consider plaintiff's evidence in the light most favorable to plaintiff and disregard defendant's evidence except insofar as it tends to aid the plaintiff's case. Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950; Gaffron v. Prudential Life Ins. Co., 238 Mo.App. 749, 187 S.W.2d 41.

Defendant does not argue that there was no evidence from which a jury could find that the door was slamming and that this brought about an unsafe condition. The crux of defendant's argument is that there was no evidence of actual or constructive knowledge on the part of defendant of a defective door check due to loss of hydraulic fluid. Defendant relies on the case of Gaffron v. Prudential Life Ins. Co., supra, a case decided by this Court, as being precisely in point. The petition in this case is very similar to that filed in the Gaffron case and in view of the similarities of the two cases, a discussion of that case is appropriate.

In the Gaffron case the door involved was a heavy screen door. The court describes in detail the operation of the door and the automatic door check there involved. Suffice to say, the operation of the door check in that case and the door check in the case at hand, are very similar and for purposes of legal analogy, may be considered the same. The plaintiff in that case had been to visit her sick sister and was leaving the apartment building through the door in question. As she was going through the door, the door came shut suddenly "real sudden, just snapped right back at me.' The door struck her hard on the right side causing her to fall. The Court said at 187 S.W.2d 41, l.c. 46 and 47:

'We think it would not aid in the solution of the problem before us to discuss the different results that would or could follow from the various possible adjustments and operating conditions of the automatic door check mechanism mentioned by plaintiff. There is no evidence whatsoever that any of the parts of the door check mechanism were broken or unworkable or missing, but notwithstanding the absence of such evidence plaintiff's own testimony that the door closed on her suddenly, violently and with great force, which we must take as true, was sufficient to warrant a finding that the manner in which the screen door struck plaintiff was caused by a lack of proper adjustment of the mechanism which controlled the operation of the automatic door check. * * *'

Here, as in the Gaffron case, there can be no question but that the evidence was sufficient from which the jury could infer that the door check mechanism was not in a reasonably safe operating condition and that plaintiff's injuries directly resulted from said unsafe condition.

In Gaffron, it was held that the evidence was not sufficient to show defendant's knowledge of such unsafe operating condition. In Gaffron, the plaintiff relied on the testimony of one witness, Mrs. Bloom, to show knowledge on the part of defendant. Mrs. Bloom had entered the building some ten days prior to plaintiff. On that occasion, her heel was caught by the door. The Court points out that Mrs. Bloom did not testify that the door closed on her suddenly, violently and with great force. She said it was a trivial thing and she gave it no more thought at the time.

Contrast that testimony with the testimony in this case. Two witnesses explained the caution they used when going through the door because of the manner in which it closed. These two witnesses and another, testified that the door in question had been 'banging' over a considerable period of time. We have the very descriptive testimony of the witnesses as to what could be heard. * * * 'it banged,' 'it was violent,' 'the glass rattled,' 'it could be heard one-half block.' The jury, under this testimony, certainly could infer that the door check mechanism was not in a reasonably safe operating condition and further that the defendant knew or should have known of this unsafe condition.

Defendant, however, states: '* * * we have searched the record from cover to cover and fail to find one shared of evidence, let alone substantial evidence, to show that the defendant had knowledge, of a loss of hydraulic fluid in its door check. * * *' (Emphasis ours) Defendant unduly restricts plaintiff's theory of the case. Plaintiff's petition set forth the peril * * * 'that said door when opened, would close suddenly, violently, and with great and excessive force.' Plain...