Lathrop v. Rippee
| Decision Date | 09 September 1968 |
| Docket Number | No. 52839,No. 1,52839,1 |
| Citation | 432 S.W.2d 227 |
| Parties | Eva LATHROP, Plaintiff-Respondent, v. Janie RIPPEE et al., Defendants. E. B. Hicks, Administrator of the Estate of Audrea Deaver, Deceased, et al., Appellants |
| Court | Missouri Supreme Court |
Quentin Haden, Ava, Warren S. Stafford, Neale, Newman, Bradshaw, Freeman & Neale, Springfield, for plaintiff-respondent.
Farrington & Curtis, Thomas Strong, Richard K. Wilson, Springfield, for E. B. Hicks, Admr. of Estate of Audrea Deaver, dec., defendant-appellant.
B. H. Clampett, Paul D. Rittershouse, Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for appellant, Tobin Hamilton Co., Inc.
IVAN LEE HOLT, Jr., Special Judge.
Plaintiff filed suit for damages for personal injuries against all Defendants. At the close of all the evidence the trial court directed a verdict in favor of the Defendant Rippee. The jury returned a verdict in favor of Plaintiff and against Defendants Deaver and Tobin-Hamilton in the sum of $18,000, thus giving us jurisdiction. After the death of Defendant Deaver, E. B. Hicks, as Administrator of her Estate, was substituted. We will refer to the parties as they were at the time of trial. Defendant Deaver has appealed from the denial by law of her after trial motion for judgment, and Defendant Tobin-Hamilton from the denial by law of its alternative motions for judgment and new trial.
These appeals arise from the general factual situation of an automobile, about 9:30 a.m. on September 14, 1962, coming through a windown near where Plaintiff was working in Defendant Tobin-Hamilton's factory in Mansfield, Missouri, striking and injuring her. At that time Plaintiff was seated at a table facing east about 10 feet north of the window mentioned. The window was in the south wall of the factory and was 17 feet 2 inches wide and 5 feet 4 1/2 inches high. The window was sectionalized plate glass, which had been painted white, allowing light through it but no vision. The bottom of the window was 5 1/2 inches above ground level and the floor of the factory 4 feet 2 inches below it. There were similar windows all along the south wall of the factory. There had been no change in the condition of the window involved, or the others, within four months of this occurrence. There was no barricade outside the window involved, or the others, at that time.
A street ran east and west along the south wall of the factory, the nearest edge being about 18 feet from it. Another street running north and south dead-ended into the east and west street about opposite the window involved. These streets were described as 'busy.' A MFA Service Station was located on the east side of the north and south street approximately 100 feet south of the factory. Opposite the Service Station this street was level, but north of it sloped down toward the factory and south of it also sloped down.
On the morning in question Defendant Deaver accompanied by her sister, Defendant Rippee. seated in front at the right, drove her '50 or '51 Chevrolet into the Service Station and had it serviced at the south pumps. She then drove the automoblie to the west pumps and stopped it in the edge of the north and south street mentioned headed toward the factory. Defendant Deaver than got out of the automobile and went inside the Service Station. The Chevrolet had an automatic transmission with a lever on the steering post, a hand emergency brake on the floor to the right and a starter button at the left side of the dash.
Three to five minutes after Defendant Deaver left the automobile, the Service Station owner, then about 30 feet from it, heard a noise, looked and saw it 'taking off' north. The noise was 'the wheels kinda spun in--the gravel flew' and '* * * it started fast.' Before that he did not hear the motor started, nor running, nor see any exhaust fumes. When the automobile started he heard the motor sounding throttled and saw exhaust. At that time the Defendant Rippee 'was just about in the middle of the seat', and didn't change in position. The automobile went 'practically straight' through the window, but 'might have veered a little to the west.' It went 43 feet into the factory and about 150 feet in all from its stopped location.
Plaintiff testified she remembered nothing about the incident except a noise and being pulled out from under something.
After Motions for a Directed Verdict in behalf of all Defendants at the close of the Plaintiff's evidence were denied, Defendant Rippee testified, supplying the only evidence for any Defendant. Her testimony was that she was ninety-one then and that her sister Defendant Deaver lived with her. That she and her sister had gone to the Service Station to get gasoline and then pulled around to have the oil changed. That her sister parked the car facing north on the west side of the Station and went to get a man to wait on her. That as her sister got out she told her 'to move over on the other side of the car out of the sun.' She said she had never driven an automobile, knew nothing about how to drive one, or its mechanisms, or their locations, except the steering wheel. She did not know whether the brake was put on, the motor turned off or left running, or in what gear position the car was put. She said she put her hands on the seat and began to slide over, and then the car started north. Her feet were then on the floor and she hit nothing on the inside of the car with them or her hands. She said she did not get a foot on the brake or the gas pedal, nor her hands on the steering wheel. She stated she had no idea what made the car start and that she had nothing to do with starting it. That when the car stopped she was 'setting' under the steering wheel, though she had not gotten that far over when the car started.
Plaintiff plead joint venture and agency as to Defendants Rippee and Deaver, but introduced no evidence in support of such allegations; plead and submitted general negligence as to Defendant Deaver; and plead and submitted failure to provide a safe place to work as to Defendant Tobin-Hamilton.
In a prior proceeding between Plaintiff and Defendant Tobin-Hamilton under the Workmen's Compensation Act, the Referee found that Plaintiff's injury did not arise out of her employment. This finding was affirmed by the Industrial Commission, and in turn by the Springfield Court of Appeals in Lathrop v. Tobin-Hamilton Shoe Manufacturing Company, Mo.App., 402 S.W.2d 16. Tobin-Hamilton moved for Summary Judgment on the ground of that opinion being res judicata, and also included that as one of the grounds on its Motions for Directed Verdict.
Defendant Deaver first contends that in passing on the denial of her Motion for a Directed Verdict, we should consider only the evidence introduced by Plaintiff and not that of Defendant Rippee since that came after Defendant Deaver's Motion and Defendant Deaver stood on her Motion. In this Defendant Deaver is correct for the rule is that where any of several defendants stands on a motion for a directed verdict at the close of plaintiff's case, the sufficiency of the evidence against such defendant in to be determined by the evidence introduced to that point. Rothweiler v. St. Louis Public Service Company, Mo.App., 224 S.W.2d 569, l.c. 573, and 234 S.W.2d 552. Gibson v. Newhouse, Mo., 402 S.W.2d 324.
But Plaintiff says Defendant Deaver did not stand on her Motion because her counsel thereafter objected to evidence, offered and objected to instructions, and argued the case, thereby waiving her challenge to the sufficiency of the evidence against her. Though we formerly held that requesting and receiving instructions was such a waiver, it has been held since the adoption of our present Code of Civil Procedure in Jacob Dold Packing Plant v. General Box Co., Mo.App., 194 S.W.2d 55, that it is not. Absent some type of express waiver, the general rule is that only the introduction of evidence in further participation in the trial is such a waiver, 89 C.J.S. Trial § 668, Notes 11 and 12. Gibson v. Newhouse, Mo., 402 S.W.2d 324 and Flanigan v. City of Springfield, Mo., 360 S.W.2d 700.
Defendant Deaver then contends that Plaintiff's evidence alone did not make a submissible case under the doctrine of general negligence or res ipsa...
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