McIntyre v. M. & K. Dept. Store, Inc.
| Decision Date | 17 December 1968 |
| Docket Number | No. 32974,32974 |
| Citation | 435 S.W.2d 737 |
| Court | Missouri Court of Appeals |
| Parties | Leona McINTYRE, a/k/a Leona Thompson, Plaintiff-Appellant, v. M. & K. DEPARTMENT STORE, INC., a Corporation, d/b/a Boxer's Department Store, Defendant-Respondent. |
Gregory D. O'Shea, St. Louis, for plaintiff-appellant.
Luke, Cunliff, Wilson, Herr, Chavaux & McCluggage, Adrian DeYong, Jr., St. Louis, for defendant-respondent.
DOERNER, Commissioner.
Plaintiff, a business invitee, slipped and fell while on defendant's premises, and brought this action to recover damages for the injuries she sustained. Trial to a jury resulted in a verdict and judgment for plaintiff in the amount of $4,000. The court sustained defendant's motion for judgment in accordance with its motion for a directed verdict on the grounds that plaintiff had failed to make a submissible case, and in the alternative sustained defendant's motion for a new trial. Plaintiff's appeal followed.
We review the evidence from a standpoint favorable to plaintiff. On June 12, 1963, plaintiff and a friend, Mrs. Alice Metcalf, were shopping in a locality in St. Louis known as the Cherokee shopping area. The day was dreary, and while it was not raining at the time of the occurrence in question, it had rained off and on earlier that morning and the streets were damp. Plaintiff and Mrs. Metcalf were looking for slacks for their respective sons. About 11:00 A.M., they saw a pair in the window of defendant's store, located at 2738 Cherokee Street, which interested them and they entered the store. Plaintiff informed defendant's manager, Stanley Boxer, that she desired to look at the trousers she had seen in the shop window, and Boxer asked her to show him the pair she had in mind. For that purpose Boxer, plaintiff, and Mrs. Metcalf walked out the front door and into the vestibule, in that order, according to plaintiff, and after plaintiff had taken a few steps towards her left she slipped and fell in what she described as 'dirty mud' on the floor of the vestibule. Without objection plaintiff related: '' Plaintiff also testified that after Boxer and Mrs. Metcalf had helped her to her feet she observed, '* * * dirty mud, like little sticks sticking to it * * *' on her raincoat, and also saw that the dirty mud on the floor of the vestible '* * * had tracks where people had walked into it.'
The record leaves a great deal to be desired as to the size and shape of the vestibule, the area of the floor which was covered with the dirty mud, and the precise point where plaintiff slipped and fell. Plaintiff described the vestibule as having a 'wide entrance,' and being '* * * hexagon shaped, or fan shaped * * *.' Mrs. Metcalf, on cross-examination, indicated that the width of the vestibule at the front door was as wide as '* * * from the rail of the jury box over to the court reporter's desk,' but no estimate of the number of feet was given. Plaintiff stated the vestibule had a tile floor composed of hexagon tiles, 'like the old fashioned bathroom floors,' white in color with blue trim. On cross-examination plaintiff was asked to mark on defendant's photograph the spot where she had fallen, but after an objection had been made by her counsel and overruled by the court the reqjest was not pressed, and she ended up pointing to some place on the exhibit and stating that she fell, '* * * in this area (indicating).' There was no testimony from any witness regarding the extent of the dirty mud on the floor of the vestibule. We gather from the testimony and the defendant's photographs filed with us that the building in which defendant's store is located fronts on the south side of Cherokee Street, and is flush with the edge of the sidewalk. An open vestibule, generally rectangular in shape, is recessed into the building, with show windows on its east and west side. Across the south side of the vestibule are double glass doors giving access to the store, with fixed glass panels on either side. The show windows on the west side of the vestibule do not form a straight line from the sidewalk towards the south, as there is a shallow recess or reverse-bay in them which was referred to in the testimony as an 'insert.' The floor of the vestibule slopes slightly from the double doors to the sidewalk.
Plaintiff testified that when she and Mrs. Metcalf entered defendant's store they walked through the vestibule in a direct line from the sidewalk to the doors, that as she did so she was looking at the slacks in the show window in which she was interested, and that she did not look at the floor or observe mud on it. She further related that during the time she was in the store, a period she estimated as three minutes or less, she saw mud on the floor with tracks in it. And she stated that when she and Boxer left the store and entered the vestibule she walked towards her left, in the direction of the insert in the show windows on the west side of the vestibule, looking all of the time at the trousers, and was in the act of pointing them out to Boxer when she slipped and fell. As best we can determine, plaintiff indicated that the place where she slipped and fell was near the southern part of the insert.
Mrs. Metcalf's testimony corroborated that of plaintiff's in all essential respects but her recollection of what Boxer said immediately after plaintiff fell was, '* * * 'I should have cleaned that mud up. '' To a certain extent Boxer's testimony agreed with that of plaintiff's, for he testified as to plaintiff's appearance in the store, the interest she expressed in the slacks in the show window, their entrance into the vestibule for the purpose of ascertaining which pair she had in mind, and, in part, plaintiff's fall. On cross-examination Boxer stated that no special housekeeping procedures were followed on a rainy day, other than to place a rug on the floor inside the store to protect it from water tracked in by customers; that the only cleaning done of the vestibule was to sweep it, and the mopping of it on Saturday by a high school body; and he agreed that on a rainy day it was possible that people would track things in to the vestibule on their feet.
Although plaintiff alleged in her petition that defendant failed to remedy the dangerous condition or to warn her of its existence, by her verdict directing instruction she submitted her case on only one of those specifications of negligence, that of defendant's failure to remove the 'mud and rain' from the floor of the vestibule. No reference was made therein to defendant's alleged failure to warn, and that charge of negligence was therefore abandoned by such nonsubmission. Wiber v. Mana, Mo., 356 S.W.2d 88; Burnett v. St. Louis Public Service Co., Mo., 337 S.W.2d 921; McFarland v. Wildhaber, Mo., 334 S.W.2d 1. Accordingly, our review of the trial court's action in sustaining defendant's after trial motion for judgment and rendering judgment for defendant is limited to the only issue plaintiff submitted. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91; Hammontree v. Edison Bros. Stores, Mo.App., 270 S.W.2d 117; Lowes v. Union Elec. Co., Mo.App., 405 S.W.2d 506.
The fundamental basis of a proprietor's liability in a case of this nature is his superior knowledge of the dangerous or defective condition of his premises which results in the injury to his business invitee, Gruetzemacher v. Billings, Mo., 348 S.W.2d 952; Howard v. Johnoff Restaurant Co., Mo., 312 S.W.2d 55; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278; and the proprietor's failure, in the exercise of...
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