Morgan v. Kroger Grocery & Baking Co.
| Decision Date | 25 September 1941 |
| Docket Number | 36590 |
| Parties | MORGAN v. KROGER GROCERY & BAKING CO |
| Court | Missouri Supreme Court |
Original Opinion of August 22, 1941, Reported at 154 S.W.2d 44.
In Banc.
On Motion for Rehearing.
Respondent's motion for rehearing complains our holding that she failed to make a case for the jury is based solely on appellant's evidence, and violates the rule that on a demurrer to the evidence, the facts must be viewed in the light most favorable to the plaintiff, and the defendant's evidence to the contrary cannot be considered. She asserts the opinion is bottomed solely on (1) the testimony of the defendant Meisburger (owner of the store, who was acquitted by the jury) and appellant's witness Bechtold, both of whom testified to the general use of the sidewalk for twenty years; (2) appellant's Exhibit 3, the store lease; (3) respondent's original, first and second amended petitions, which were abandoned by respondent the case being tried on a third amended petition. Appellant introduced said abandoned pleadings in evidence.
Respondent is right in saying we must view the evidence in the light most favorable to her in passing on a demurrer to the evidence. But this does not apply to documentary evidence which is introduced without objection and is undisputed. Wendorff v. Missouri State Life Ins. Co., 318 Mo.363, 369(1), 1 S.W.2d 99, 101(2). The abandoned pleadings were competent evidence as admissions of respondent. Wahl v. Cunningham, 332 Mo. 21, 39 (13), 56 S.W.2d 1052, 1059 (14).
As to the lease, the parties orally agreed at the beginning of the trial that the store lease from the Meisburgers was dated in 1925, assigned to appellant in 1928, and expired in 1937. The casualty occurred in January, 1936. The written lease was offered in evidence by appellant without objection, formal identification thereof being waived by respondent's counsel. When counsel for appellant started to read paragraph 7(e) of the lease to the jury, counsel for defendants Meisburger objected to the reading of 'that portion of the lease' and the objection was sustained. Then counsel for respondent said: We want to now offer that same exhibit that he has just offered, or that portion of it, on behalf of the plaintiff.' Counsel for defendants Meisburger objected and that objection was sustained. But, as we understand, only that portion of the lease was excluded. In the principal opinion four lines refer to and quote part of said paragraph 7(e). That part is stricken from the opinion. But the excision of it can work no change in the result. It clearly appears from the lease as a whole, omitting the part just stated, that in contemplation of the parties the lease was on the building, not the 10-foot sidewalk which had been thrown open to the public. And even though the Meisburgers owned and appellant leased the 10-foot strip subject to the sidewalk easement, it would make no difference in the result. Callaway v. Newman Mercantile Co., supra, 321 Mo. 766, 12 S.W.2d 491, 62 A.L.R. 1056.
Respondent's own photographic exhibits C and D show there must have been general use of the whole sidewalk space from the front door of the store out to the curb. There is not the slightest contention that this had not been going on for many years and nothing to indicate otherwise. There is nothing in the...
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