Morgan v. Kroger Grocery & Baking Co.
| Decision Date | 22 August 1941 |
| Docket Number | 36590 |
| Citation | 154 S.W.2d 44,348 Mo. 542 |
| Parties | Mary E. Morgan, Plaintiff-Respondent, v. Kroger Grocery & Baking Company, Defendant-Appellant |
| Court | Missouri Supreme Court |
Rehearing Denied September 25, 1941.
Appeal from Circuit Court of City of St. Louis; Hon. Ernest F Oakley, Judge.
Reversed.
Wayne Ely for appellant.
(1) The court erred in overruling and refusing the instruction in the nature of a demurrer requested by defendant Kroger at the close of the plaintiff's case. (a) The sidewalk on which plaintiff fell was a public sidewalk. Callaway v. Newman Mercantile Co., 12 S.W.2d 491; Benton v. St Louis, 217 Mo. 687, 118 S.W. 418; Sheridan v. St. Joseph, 110 S.W.2d 371. (b) Plaintiff slipped and fell on slick ice which was deposited on the sidewalk by the elements. Kroger had done nothing either to create or change the condition that existed, and owed plaintiff no duty to remove the ice from the sidewalk, or to make the sidewalk safe for her use. Stith v. Newberry Co., 336 Mo. 467, 79 S.W.2d 447; Russell v. Sincoe, 293 Mo. 428, 240 S.W. 147. (2) The court erred in refusing the instruction in the nature of a demurrer requested by defendant Kroger at the close of the whole case. (a) The evidence on behalf of defendants did not make out a case for plaintiff, and in nowise aided or assisted plaintiff's case. (b) The sidewalk on which plaintiff fell had been used by the public for more than twenty years, and was a public sidewalk. Kroger was under no obligation to make the sidewalk safe. Callaway v. Newman Mercantile Co., 12 S.W.2d 491; Benton v. St. Louis, 217 Mo. 687, 118 S.W. 418; Sheridan v. St. Joseph, 110 S.W.2d 317; Stith v. Newberry Co., 336 Mo. 467, 79 S.W.2d 447; Russell v. Sincoe, 293 Mo. 428, 240 S.W. 147.
Gus O. Nations for respondent.
(1) Defendant conducted a public grocery store into which it invited the plaintiff. It owed plaintiff the duty to use reasonable care to maintain the premises and the means of entrance thereto in a safe condition for plaintiff's use. Since the plaintiff's evidence showed defendant failed in this duty and plaintiff was injured as a result, the demurrer to the evidence was properly overruled. 45 C. J. 834; Cash v. Sonken-Galamba Co., 322 Mo. 349, 17 S.W.2d 927; Solomon v. Moberly, etc., Co., 303 Mo. 622, 262 S.W. 367; Applegate v. Quincy, etc., Ry. Co., 252 Mo. 173, 158 S.W. 376; Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1, 22 L. R. A. (N. S.) 1045, 17 Ann. Cas. 576; McCullen v. Fishell Bros. Amusement Co., 198 Mo.App. 130, 199 S.W. 439; Gilliland v. Bondurant, 332 Mo. 881, 51 S.W.2d 559; Ilgenfritz v. Mo. Power & Light Co., 340 Mo. 648, 101 S.W.2d 723; Achters v. Sears-Roebuck & Co., 105 S.W.2d 959; Evans v. Sears-Roebuck & Co., 104 S.W.2d 1035; Benton v. St. Louis, 217 Mo. 687, 118 S.W. 418; Sheridan v. St. Joseph, 110 S.W.2d 371; Stith v. Newberry Co., 336 Mo. 467, 79 S.W.2d 447; Russell v. Sincoe Realty Co., 293 Mo. 428, 240 S.W. 147. (2) Instruction 1 is not erroneous. (a) It was defendant's duty to remove ice from the means of entrance to the store when defendant knew of its presence and its dangerous condition. Cases under Point (1); Hobelman v. Valentine, 26 Mo. 393; Skyles v. Bollman, 85 Mo. 35; Root v. Quincy, O. & K. C. Ry. Co., 237 Mo. 640; Chouteau v. Searcy, 8 Mo. 733; Craighead v. Wells, 21 Mo. 404. (b) Instruction 1 is not broader than the evidence.
The plaintiff-respondent recovered a judgment against the defendant-appellant, Kroger Grocery & Baking Company, for $ 10,000 damages for personal injuries sustained in falling on an icy sidewalk when approaching the latter's store in a building at 4066 Shenandoah Avenue in St. Louis on February 3, 1936. Nine of the jury concurred in the verdict. The city and Wm. J. and Alice S. Meisburger, husband and wife and owners and lessors of the building, also were joined as defendants, but the plaintiff dismissed as to the city and the jury found for the defendant Meisburgers. The assignments on this appeal complain: that the trial court erred in refusing to give a peremptory instruction for appellant; of the giving and refusal of instructions; and of the remarks and argument of plaintiff's counsel, and rulings thereon.
The case was first argued and submitted in Division I of this court and an opinion written dismissing the appeal because appellant's abstract and brief were held defective. On a dissent of one of the judges the cause was transferred to the court en banc. Appellant has filed a new abstract and brief here. Respondent asks us to disregard them and adhere to the divisional opinion. But the law is otherwise. The case stands here as if it had not been previously heard and submitted. [Morris v. K. C. Lt. & Power Co., 302 Mo. 475, 481, 258 S.W. 431; Sutton v. Anderson, 326 Mo. 304, 318, 31 S.W.2d 1026, 1030.]
The building had a fifty-foot double front with two storerooms. One, on the corner of Shenandoah and Thurman Avenues, was occupied by a drug store, and the other by the Kroger Company. To the left of the latter storeroom (as you face it) was a door and stairway leading to the second floor, which was rented for living apartments. Still to the left of the Meisburger building was a narrow passageway between it and the next building, with three steps leading up from the public sidewalk to the passageway, which latter was on the adjoining lot. But a restrictive covenant in a deed executed some forty-six years before in June, 1890, forbade the erection of any building on the Meisburger lot closer than ten feet to the street line, in consequence of which the Meisburger building was set back from the property line a little over ten feet.
For twenty years, to the knowledge of Mr. Meisburger and a witness who had conducted the drug store for that length of time, the ten-foot space just mentioned had been occupied by a concrete sidewalk which physically constituted an integral part of the regular sidewalk that continued on past the adjoining lot. Sometime during that twenty-year period the regular sidewalk had been extended out to the street curbing, across a three-foot parkway or dirt strip, so that the whole afforded continuous lateral and longitudinal passage to the public from the curb to both stores, to the apartment entrance, and on up to the corner. These physical details are shown by two photographs, Exhibits C and D, introduced by plaintiff and exhibited to the witnesses who testified on such matters. They are incorporated in this opinion. The point marked X on Exhibit C is where respondent testified she fell. According to her testimony it was two or three feet from the store entrance. The point marked 0 is where witnesses for appellant said she fell. But we must rule the case on the evidence more favorable to respondent. Two other photographs also were introduced by respondent, but it is unnecessary to insert them. Exhibits C and D fairly show the situation. They are as follows.
[SEE EXHIBIT C IN ORIGINAL]
[SEE EXHIBIT D IN ORIGINAL]
Respondent's legal contention is that appellant was bound to maintain the space where she fell in condition for safe passage into the store because: (1) it was a part of the leased premises, or appurtenant thereto; (2) it had never been dedicated to street use and accepted by the city, so far as the record shows; (3) it was so close to the door of the store as to be a part of the entrance thereto; (4) appellant's store manager saw her approaching from the time she got off the street car -- as he, himself, testified -- and yet failed to warn her of the danger, or to assist her. We need only say respondent is not entitled to rely on this last assignment of negligence because it was not pleaded. The concluding paragraph of her third amended petition, on which the case was tried, expressly charges that all of her injuries were "directly due to the joint negligence of the defendants in permitting said slick and uneven ice and snow to be and remain upon said passage way and in failing to remove the same," when they knew or should have known of said unsafe condition in time to remedy it. There is no charge anywhere in the petition of failure to warn or assist her.
Getting back to the other points, respondent's supplemental brief en banc explicitly concedes that an abutting landowner has no duty to keep a city-owned sidewalk clear of ice unless he contributed to the hazard. So on respondent's own theory the case hinges on whether the place where she fell was not a public sidewalk, but a part of the leased premises, or appurtenant thereto. The lease was made in 1925 to the Missouri-Illinois Stores Company, cancelling a previous lease to the Piggly-Wiggly Stores, Inc., dated in November, 1922. It was assigned to appellant as lessee in September, 1928, nearly eight years before the casualty. It was a long "Standard Store Lease," nearly all printed. The printed part thereof does recite the leasing of "the premises with all appurtenances thereto situated in the City of St. Louis, State of Missouri." From there on, by the use of a small part of the printed matter, interlineations and typewriting, the lease reads: "known as No. 4066 Shenandoah Ave. to include the store room on the first floor, size 19x60 feet ceiling, 12 feet high and wareroom 12x20 in rear thereof -- first floor, of the two story brick building, known and described as." Then filled in in typewriting, it continues: "Part of Lot 14 in City Block 4923 fronting 25 feet on the South line of Shenandoah Avenue by a depth southwardly of 83 feet more or less to a line 40 feet north of alley more or less to edge of building facing Thurman Ave. and known as #4066 Shenandoah Ave. Rear entrance to said store room and warehouse from alley in the rear of said store building."
It will be noted the...
To continue reading
Request your trial