Lonnecker v. Borris, 42546

• Citation: 245 S.W.2d 53
• Decision Date: 10 December 1951
• Docket Number: No. 2,No. 42546,42546,2
• Parties: LONNECKER v. BORRIS et al
• Court: United States State Supreme Court of Missouri

Page 53

245 S.W.2d 53

LONNECKER v. BORRIS et al.

No. 42546.

Supreme Court of Missouri, Division No. 2.

Dec. 10, 1951.

Motion for Rehearing or to Transfer to Court en Banc Denied

Jan. 14, 1952.

Clyde J. Linde, Billy S. Sparks and Lang-worthy, Matz & Linde, all of Kansas City, for appellants, Fanny Borris, Leonard Borris and Cipa Sidransky.

Raymond G. Barnett, John H. Foard and Barnett & Foard, all of Kansas City, for respondent, Laura E. Lonnecker.

TIPTON, Judge.

This is the second appeal of this action for personal injuries respondent received while a paying guest in a hotel operated by appellants. At the first trial, the trial court directed a verdict for these appellants at the close of respondent's testimony. Later, it sustained respondent's motion for a new trial and the appellants appealed to this court from that order. We affirmed the action of the trial court in sustaining the motion for a new trial and held that respondent's evidence was sufficient to submit the question of appellants' negligence to the jury and, also, that respondent was not guilty of contributory negligence as a matter of law. Our opinion on the first appeal is reported at 360 Mo. 529, 229 S.W.2d 524.

At the last trial the jury found the issues in favor of respondent and assessed her damages in the sum of $12,500, and a judgment was entered upon that verdict. The appellants have duly appealed.

There is no substantial difference between the evidence on behalf of respondent in the last trial and the evidence in the first trial.

The respondent had been a paying guest in appellants' hotel for over two years. The hotel was known as the Washington Hotel and she had occupied room 234 since November 1, 1945. The furnishings of this room consisted of a bed, dresser, table, a Morris chair and another chair. The Morris chair came within about 2 inches of the floor. The seat springs were 'all bunched up' at one end and respondent testified it was 'out of kelter.'

On July 12, 1946, respondent started to move the chair and in so doing her right foot in some manner got caught underneath the chair on a wire, causing her to fall. She received severe injuries which will be more fully discussed later.

Mrs. Jessie Miller testified she was the manager of this hotel when it was purchased by appellants in May 1946, and was manager at the time respondent was injured. She testified that respondent complained to her about the Morris chair; that she sat in it and she knew it was uncomfortable; that the springs were sagging in it; and that after respondent said she caught her shoe, Mrs. Miller felt under the chair and felt a spring. It was like an ordinary coil wire and was nearly level with the floor.

Appellants contend that this case should not have been submitted to the jury. First, they content that there is no evidence that they failed 'to exercise ordinary and reasonable care to keep the premises reasonably safe,' and, second, that respondent 'was guilty of contributory negligence as a matter of law.'

These questions were presented in the first appeal and we ruled that the evidence was sufficient for the jury to find that appellants did not use ordinary care in keeping the premises safe for their patrons, and we further held that the question of contributory negligence was a question for the jury. The adjudication of that appeal and the questions presented constitute the law of this case and of this appeal unless the former ruling was palpably wrong or unless there is a substantial difference in the evidence and the facts upon the two trials. We have already stated that there is no substantial difference in the evidence in this appeal and the evidence in the former appeal. Nor is there any contention that our former ruling was palpably wrong. Moreover, we are of the opinion that our ruling in the first appeal was correct.

'The former adjudication is not only the law of the case as to all questions directly raised and passed upon but it is also the law of the case as to matters which arose prior to the first appeal and which might have been raised thereon but which were not raised or presented. 5 C.J.S., Appeal and Error, Secs. 1821, 1823-1827, 1964a, pp. 1267-1281, 1499.' Norris v. Bristow, 361 Mo. 691, 236 S.W.2d 316, loc. cit. 319.

We are bound by our rulings on the first appeal as the law of the case and of course hold that respondent's evidence made a case for the jury.

The appellants' next assignment of error is that the trial court refused to allow appellants to cross-examine respondent as to certain statements which appellants contend were inconsistent with statements made by respondent when she testified at previous trials and when her deposition was taken.

The questions asked by appellants to which the trial court sustained respondent's objections are as follows:

'Q. All right. Now, at the second trial do you remember that I called to your attention the difference in your testimony when you first said that you kicked your foot loose and the testimony at the second trial when you said you couldn't kick it loose--the testimony at the second trial when you said you couldn't kick it loose and had to take your hand and remove it? And do you remember when I asked you if you knew the difference between kicking and taking your hand, and you said that you did, but had no explanation? A. Perhaps you didn't give me time.

'Mr. Barnett: Wait just a minute. I object to counsel's questions; he infers there are differences which couldn't be harmonized. That is not necessarily the case; that is a question for the jury to pass on.

'The Court: I will sustain the objection.

'Mr. Linde: All right.'

'Q. (By Mr. Linde) On page 89 of the transcript of the second trial I asked you: 'Now, you know the difference, do you not, Mrs. Lonnecker, between kicking your foot loose and reaching down and reaching under the chair and disengaging a piece of metal from your gabardine slipper? You know the difference, do you not? Answer: Yes.' A. I do.

'Q. And at the second trial you made no explanation, did you, of why you had changed your testimony? A. I perhaps----

'Mr. Barnett: I object to that, for the reason that the inference is--it infers that the witness had changed her testimony; and for another reason, because it infers that there was an obligation upon her to make any explanation of anything.

'The Court: Sustain the objection.'

'Q. Well, now, at the first trial you told Mrs. Ragland you didn't know what it was and she felt and told you it was a wire and then you got down and felt it and said, 'This thing is sharp'? A. Well, my conversation before--I told her I didn't know what it was--she said, 'Was it a spring that was down there?' I didn't go by---- 'Q. You didn't know it was a wire, but at the second trial you said while you were sitting on the floor--'I knew it was a wire; I knew it was a wire when I felt it.' Which is right?

'Mr. Barnett: I object to that, now--'which is right.'

'The Court: Sustained.'

Of course, the question involving the fact that respondent 'made no explanation' is argumentative. The same is true of the question, 'Which is right?' It is not 'proper to so frame the cross-examining questions that they are argumentative, or call for a conclusion, or assume facts.' State v. Carroll, Mo.Sup., 188 S.W.2d 22, loc. cit. 24.

Moreover, the scope and extent of cross-examination is discretionary with the trial court and its ruling in this respect will not be disturbed unless an abuse of discretion is clearly shown. Dempsey v. Horton, 337 Mo. 379, 84 S.W.2d 621; Hungate v. Hudson, 353 Mo. 944, 185 S.W.2d 646, 157 A.L.R. 598; Hilton v. Thompson, 360 Mo. 177, 227 S.W.2d 675. There is no showing of abuse of discretion by the trial court in his rulings in the above cross-examination. This is especially true since in each instance the questions were argumentative.

Appellants attempt to show that respondent made inconsistent statements in her deposition from her testimony at this trial. There was no objection to this line of cross-examination and no ruling was made by the trial court. Therefore, there is nothing before us for review.

Appellants contend that the instructions given by the trial court on behalf of respondent are erroneous. We do not believe these instructions are before us because the transcript of the record fails to show that any objections were made to the giving of these instructions. Holdman v. Thompson, 358 Mo. 577, 216 S.W.2d 72.

The correctness of the transcript is certified to this court in the following manner: 'We hereby consent that the foregoing is a true and correct Transcript on Appeal saved on behalf of defendants, subject to the ruling of the Supreme Court upon defendants' Suggestions that it fails to show that defendants objected to the giving of all of plaintiff's instructions, and that plaintiff objected to the giving of all of defendants' instructions as set forth in defendants' Suggestions to Correct Omissions in the Transcript on Appeal which Suggestions will be duly filed in the Supreme Court, and agree that the same may be signed, filed and made a part of the record in this cause.'

Section 512.110, RSMo, 1949, provides, 'If the parties agree that the transcript correctly includes all of the record, proceedings and evidence, it need not be approved by the trial court. * * * If there is any dispute concerning the correctness of any transcript, or any part thereof, or if the parties fail to agree within a reasonable time as to its correctness, the transcript shall be settled and approved by the trial court.'

There was no showing that any effort was made to get the trial court to approve the transcript. However, the appellants filed in this court 'Suggestion That Transcript On Appeal Be Corrected To Include Objections To Instructions Omitted From The Transcript By Error, Accident, Or Inadvertence.' Section 512.110, supra, also provides: 'If anything material to either party is omitted from...