De Moulin v. Roetheli

• Decision Date: 04 September 1945
• Docket Number: No. 39390.,39390.
• Parties: LEO DeMOULIN v. FRANK ROETHELI, Defendant, KROGER GROCERY & BAKING COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

189 S.W.2d 562

LEO DeMOULIN v. FRANK ROETHELI, Defendant, KROGER GROCERY & BAKING COMPANY, a Corporation, Appellant.

No. 39390.

Supreme Court of Missouri.

Division Two, September 4, 1945.

Motion for Rehearing or to Transfer to Banc Overruled, October 1, 1945.

Appeal from Circuit Court of City of St. Louis. — Hon. Charles B. Williams, Judge.

AFFIRMED (subject to remittitur).

Wayne Ely for appellant.

(1) Plaintiff's petition states a case on the principle of respondeat superior. The evidence discloses that the doctrine of respondeat superior applies, and that the Kroger Company could not be liable except through the negligence of Roetheli. The jury verdict discharged Roetheli, thereby removing the only foundation upon which to impute negligence to Kroger. No judgment can be based on such verdict. McGinnis v. Chicago, R.I. & P. Ry. Co., 200 Mo. 347, 98 S.W. 590; Stith v. J.J. Newberry Co., 336 Mo. 467, 79 S.W. (2d) 447; Ruehling v. Pickwick Greyhound Lines, 337 Mo. 196, 85 S.W. (2d) 602; Stoutimore v. Atchison, T. & S.F. Ry. Co., 338 Mo. 463, 92 S.W. (2d) 658; Brunk v. Hamilton-Brown Shoe Co., 334 Mo. 517, 66 S.W. (2d) 903. (2) There is no evidence as to when the grease got on the floor, or that defendant Kroger Company had notice, either actual or constructive, of the presence of grease on the floor before plaintiff slipped on the grease and fell. Williams v. Kansas City Term. Ry. Co., 288 Mo. 11, 231 S.W. 954; McKeighan v. Kline's, Inc., 339 Mo. 523, 98 S.W. (2d) 555; Clayton v. May Dept. Stores Co., 184 S.W. (2d) 735. (3) The undisputed evidence discloses that there was no grease on the floor the night before plaintiff fell; and the testimony of plaintiff on direct examination that the store manager "was saying something about he should have had it cleaned up the day before" and "said something about being neglectful," does not prove that the grease was there the day before, and does not amount to proof of notice. Williams v. Kansas City Term. Ry. Co., 288 Mo. 11, 231 S.W. 954; McKeighan v. Kline's, Inc., 339 Mo. 523, 98 S.W. (2d) 555; Clayton v. May Dept. Stores Co., 184 S.W. (2d) 735. (4) Plaintiff's further testimony on direct examination shows that the store manager "didn't use the same words" imputed to him by plaintiff. And plaintiff's testimony on direct-examination was further clarified and modified by plaintiff on cross-examination to show that the store manager did not say that grease was on the floor the day before, that he (the manager) forgot to clean it up or neglected to clean it up, and shows that all that plaintiff claimed the store manager said to him was that the grease "should have been cleaned up the day before and it was forgotten about," which alleged expression of the store manager amounts to no more than a conclusion on his part, and not a statement of fact. State ex rel. S.S. Kresge Co. v. Shain, 101 S.W. (2d) 14; Van Bibber v. Swift & Co., 286 Mo. 317, 228 S.W. 69; Fesler v. Hunter, 35 S.W. (2d) 641. (5) Plaintiff's testimony on direct-examination that the store manager "didn't use them same words" about the grease not having been cleaned up the day before, and about being neglectful; and plaintiff's testimony on cross-examination that the store manager "didn't exactly say to me" that the grease should have been cleaned up the day before and was forgotten about, contradicts plaintiff's testimony as to what the manager said to him, and completely nullifies his said testimony and destroys the effect thereof. Adelsberger v. Sheehy, 59 S.W. (2d) 644. (6) Plaintiff was guilty of contributory negligence as a matter of law, because when he entered the room in which he fell he knew there might be "most anything, grease and fat and stuff on the floor," and it was so dark in the room that plaintiff "couldn't see the floor very good," and couldn't see small objects on the floor. Mosely v. Sum, 130 S.W. (2d) 465; Summa v. Morgan Real Estate Co., 165 S.W. (2d) 390. (7) Instructions 1 and 2 were identical in telling the jury the facts they were required to find, were repetitious, and by giving the two instructions the court unduly emphasized the facts therein hypothesized, and gave undue prominence to said facts. Hencke v. St. Louis & H.R. Co., 335 Mo. 393, 72 S.W. (2d) 798; Rice v. Jefferson City Bridge & Transit Co., 216 S.W. 747. (8) The direction to the jury to return a verdict in favor of plaintiff and against the Kroger Company if they found the facts as hypothesized in Instruction 2 is inconsistent with the direction to return a verdict in favor of plaintiff and against both defendants if the jury found the facts as hypothesized in Instruction 1, and the giving of the two instructions was confusing and misleading. State ex rel. Tunget v. Shain, 340 Mo. 343, 101 S.W. (2d) 1; Freeman v. Berberich, 332 Mo. 831, 60 S.W. (2d) 393; Lee v. Shryack-Wright Grocery Co., 53 S.W. (2d) 406; White v. Powell, 346 Mo. 1195, 145 S.W. (2d) 375; King v. Franklin, 342 Mo. 715, 117 S.W. (2d) 284; Mahaney v. Kansas City, C.C. & St. Jo. A.T. Co., 329 Mo. 793, 46 S.W. (2d) 817; Schimmelpfenning v. Wells, 24 S.W. (2d) 154. (9) Instruction 5 states an abstract proposition of law, is confusing and misleading, and calculated to cause the jury to return an excessive verdict. Myers v. Thomas, 186 S.W. (2d) 811; Gellioz v. State Highway Comm., 153 S.W. (2d) 18; King v. Kirth, 108 S.W. (2d) 1; Schipper v. Brasher Truck Co., 132 S.W. (2d) 993. (10) Instruction 8 assumes that $620 is the amount of medical and hospital attention "received" by plaintiff, and permits the jury to return a verdict for plaintiff for such "attention" without requiring them to find that plaintiff had incurred or become obligated for any expense in connection with medical and hospital attention. Duke v. Mo. Pac. Ry. Co., 99 Mo. 347, 12 S.W. 636; Robertson v. Wabash R. Co., 152 Mo. 582, 53 S.W. 1082. (11) Instruction 8 is further erroneous in that it permits the jury to find that plaintiff has suffered loss of wages and earnings of $65 a week, when the evidence shows that he had not lost more than $45 a week. Duke v. Mo. Pac. Ry. Co., 99 Mo. 347, 12 S.W. 636; Robertson v. Wabash R. Co., 152 Mo. 582, 53 S.W. 1082. (12) Instruction 8 erroneously permits the jury to award damages for permanent injuries when the evidence is not sufficient to justify a finding that plaintiff was permanently injured. State ex rel. K.C. Pub. Serv. Co. v. Shain, 350 Mo. 316, 165 S.W. (2d) 428; Derschow v. St. Louis Pub. Serv. Co., 339 Mo. 63, 95 S.W. (2d) 1173; Weiner v. St. Louis Pub. Serv. Co., 87 S.W. (2d) 191. (13) The court erred in refusing Instruction F requested by defendant. Instruction F correctly declares the law, presents the defendant's theory of plaintiff's contributory negligence, and was warranted by the evidence. Borgstede v. Waldbauer, 88 S.W. (2d) 373; Gower v. Trumbo, 181 S.W. (2d) 653; Bashkow v. McBride, 177 S.W. (2d) 637. (14) The judgment is excessive.

Everett Hullverson for respondent; Orville Richardson of counsel.

(1) This case was pleaded and proved on the theory that Roetheli and Kroger were liable because of "two distinct torts causing his injury — concurrent negligence — and not an instance of single negligence dependent on respondeat superior, as is true in the automobile cases." Liability of Kroger was not predicated solely upon the negligence of Roetheli. Kroger, as store-keeper, had "a different and separate legal duty" to plaintiff than did Roetheli, the manager. Therefore, acquittal of Roetheli did not exonerate Kroger. Devine v. Kroger Grocery & Baking Co., 349 Mo. 621, 162 S.W. (2d) 813. (2) Moreover, there was evidence from Roetheli himself that the clean-up boy, clerk, butcher or anyone connected with Kroger were supposed to clean up the grease. "If the liability of the master is not predicated solely upon the negligence of the employee in whose favor a verdict has been found, but upon the negligence of another employee or that of the employer himself, a verdict against the employer is not inconsistent." Devine v. Kroger Grocery & Baking Co., supra: Stith v. J.J. Newberry Co., 336 Mo. 467, 79 S.W. (2d) 447; Stoutimore v. A., T. & S.F. Ry. Co., 338 Mo. 463, 92 S.W. (2d) 658; Lindman v. Kansas City, 308 Mo. 161, 271 S.W. 516; Nimmon v. Perkinson Bros. Const. Co., 85 S.W. (2d) 98. (3) There was substantial evidence that Kroger was negligent. There was evidence that its employees had been negligent in creating and maintaining the dangerous condition which caused plaintiff to fall. Moone v. Kroger Grocery & Baking Co., 148 S.W. (2d) 628; Armstrong v. Kroger Grocery & Baking Co., 78 S.W. (2d) 564; Wood v. Walgreen Drug Stores, Inc., 125 S.W. (2d) 534. (4) Roetheli told the plaintiff at the time of the accident that he should have cleaned up the grease the day before but didn't get to pick it up because it was forgotten about or neglected. It was not necessary that plaintiff in relating this conversation repeat it word for word. Ray v. Hooper, 204 S.W. 30; Griffith v. Continental Cas. Co., 299 Mo. 426, 253 S.W. 1043; Sullivan v. Union Electric L. & P. Co., 331 Mo. 1065, 56 S.W. (2d) 97. (5) Appellant made no objection that these statements were a conclusion, and therefore, even if they were conclusions (which they were not), they had probative value. Doyle v. St. L. Merchants' Bridge Term. Co., 326 Mo. 425, 31 S.W. (2d) 1010. (6) These statements were admissible as part of the res gestae. State ex rel. S.S. Kresge Co. v. Shain, 340 Mo. 145, 101 S.W. (2d) 14; Chawkley v. Wabash Ry. Co., 317 Mo. 782, 297 S.W. 20; Bennette v. Hader, 337 Mo. 977, 87 S.W. (2d) 413. (7) These statements were at least competent to show knowledge and therefore were admissible. If defendant wished to have them limited, it should have made a proper request for an instruction to that effect. State ex rel. S.S. Kresge Co. v. Shain, 340 Mo. 145, 101 S.W. (2d) 14; Chawkley v. Wabash Ry. Co., 317 Mo. 782, 297 S.W. 20; Curtis v. Indemnity Co. of America, 327...