Murphy v. Fidelity Nat. Bank & Trust Co.
| Decision Date | 02 May 1932 |
| Citation | 49 S.W.2d 668,226 Mo.App. 1181 |
| Parties | MARY ELLEN MURPHY, RESPONDENT, v. FIDELITY NATIONAL BANK AND TRUST COMPANY, APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Jackson County.--Hon. A. Stanford Lyon Judge.
AFFIRMED.
Judgment affirmed.
W. H Senner and Madden, Freeman & Madden for respondent.
Harris & Koontz for appellant.
Plaintiff recovered a judgment for $ 3,000 for personal injuries, alleged to have been sustained by her on November 3, 1928, when she fell to the floor of defendant's banking room, by reason of the sudden slipping of a rubber mat, upon which she stepped, while an invitee of defendant.
The petition alleged general negligence; the answer was a general denial.
The evidence is that plaintiff, at the time of injury, was and for a long time had been a customer of defendant bank, and had occasion on that day to visit the defendant's premises. She first went to the rest room, the floor of which was on a slightly higher level than that of the banking room. Returning to the banking room from the rest room, she passed along a corridor, then stepped down one step from the corridor to the banking room floor, which was of title. At the place where she stepped a rubber mat had been provided by the bank, which rubber mat was close to the riser of the step. When plaintiff stepped upon the mat, it slipped away from the step, twisting her foot, and caused her to fall heavily to the floor.
At the time and immediately thereafter, plaintiff noticed that the floor of tile, where the mat had been, and from which it had slipped six or eight inches, was "smeared," by which she meant it was apparently wet and soapy; that the remainder of the floor was dry. The plaintiff further testified, on cross-examination, that it was smeared, looked wet and soapy; that she would think it was wet; that she did not reach over and touch it.
It is undisputed that the rubber mat was placed upon the tiled floor, being neither countersunk, fastened nor otherwise secured. Plaintiff offered evidence that it was the general custom, under like circumstances, to countersink, secure or fasten such mats to prevent the tendency to slip when stepped upon as plaintiff stepped upon this mat. She also produced evidence that if such a mat is not so secured it will slide or slip upon a tile surface, with attendant danger to persons stepping thereon; that the danger would be greater if the floor underneath the mat were damp.
The plaintiff's evidence shows that the street was dry; that no moisture could have reached this mat from the rest room, or other place, and that none could have been "tracked" onto it by other customers of the bank. It was in evidence that the night janitor cleaned the floor of the banking room the night before; that he scrubbed it by pouring water on it and then mopped it with cleansing powder, for which purpose he first removed the mat; he remembered using the water and cleansing powder at that point the night before, but could not remember drying the floor at the place where the mat was; that he knew of no other way that floor could have been wet and soapy unless he left it in that condition the night before.
The defense was that no such custom existed of placing mats in countersunk or other secured positions; that the plaintiff admitted on four different occasions, immediately following her injury, to different employees of the bank, that it was her fault; that her heel had caught, because of the type of shoes she was wearing.
There is no dispute as to the extent of plaintiff's injuries, and no claim that the verdict is excessive.
The first assignment of error is that the trial court erred in sustaining plaintiff's challenge to two members of the panel of jurors, on voir dire, and in refusing to sustain defendant's challenge to a third member of the panel.
As to the first, it appeared that he not only had an account at defendant bank, but was at the time indebted to it; also, that the bank was the trustee of a fund of which he was a beneficiary. He expressed the opinion that he could try the case fairly and impartially.
The second said he had worked for corporations for twelve years, that since his bread came from corporations for twelve years, undoubtedly his sympathy would be with them; that that sympathy might influence him if he were a juror in a case where a corporation was a party.
The third juror was employed in a meat market which occasionally sold meat to Mrs. Madden, wife of the senior member of the plaintiff's counsel. He knew Mrs. Madden and also a Mr. Jones, who had some connection with Mr. Madden's office, but no connection with the law suit. He had occasionally sold them meat, but had no social acquaintance with them. He swore that he could try the case fairly and impartially, and the fact that they were attorneys in the case would not cause him to favor their side of the case in any way.
The purpose of voir dire examination is to secure a jury of fair and impartial men. To this end, the trial court is vested with a large discretion in determining their fitness to serve. The voir dire examination of the first two jurors is not fully preserved, but from what may be gathered from the record, their answers indicate a grave doubt of their fitness, and the trial court may not be convicted of error for sustaining challenges as to them. [Glasgow v. Street Railway, 191 Mo. 347; Quirk v. Met. St. Ry. Co., 210 S.W. 103; Burton v. Phillips, 7 S.W.2d 712.]
As to the third juror, the defendant's challenge was overruled, and it appears that the trial court also overruled plaintiff's challenge to three veniremen who were depositors of defendant bank. The casual business dealings between the juror's employer and the wife of counsel and someone in the attorney's office would be insufficient cause to disqualify him. The verdict of the jury was unanimous and hence the error, if any, was harmless. [Parlon v. Wells, 17 S.W.2d 528, 533.]
The appellant complains because the trial court permitted plaintiff to read from the deposition of witness Perkins. At the trial the witness gave evidence which was inconsistent with his statement in his deposition. He was the defendant's janitor, and the deposition was read to refresh his recollection. The manner of the examination of a witness rests largely within the discretion of the trial judge and unless the record discloses an abuse of discretion an appellate court will not interfere. There is nothing in the record to show that the trial judge abused his discretion in permitting the attention of the witness to be called to statements in his deposition. [Ashby v. Gravel Company, 111 Mo.App. 79, 85 S.W. 957.]
The defendant complains the trial court erred in allowing plaintiff to testify that the heel of the shoes she wore at the time of her fall was an ordinary heel, such as women ordinarily wear on the street. The objection here is that this invades the province of the jury. The plaintiff says that the question was answered before objection was made; that the objection at the trial was that it was leading, and the witness not qualified; and that she had already given the same testimony, without objection. We find all three of these suggestions to be correct; hence, the point is ruled against defendant. Moreover, the shoes were produced at the trial and the jury could determine the question from examination thereof.
Defendant next complains that the trial court limited it in its cross-examination of plaintiff, with reference to her allegations of injuries in a previous damage suit against a street railway company. An examination of the record discloses an objection by counsel for plaintiff to the form of a question, and that, thereafter, defendant's counsel was allowed to go fully into the allegations of the petition, without objection.
The next assignment of error is that the trial court erred in refusing to strike out the testimony of the witness Doyle as to the ...
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