Murphy v. Fred Wolferman, Inc.

• Decision Date: 13 March 1941
• Docket Number: 37214
• Parties: Agnes M. Murphy v. Fred Wolferman, Inc., Appellant
• Court: Missouri Supreme Court

148 S.W.2d 481

347 Mo. 634

Agnes M. Murphy v. Fred Wolferman, Inc., Appellant

No. 37214

Supreme Court of Missouri

March 13, 1941

Appeal from Jackson Circuit Court; Hon. John T. Cook Judge.

Affirmed on Remittitur of $ 5000.

R B. Caldwell, Stanley Garrity, John W. Oliver and McCune, Caldwell & Downing for appellant.

(1) Plaintiff recovered in the trial court on the theory she was an invitee, although the facts presented by plaintiff proved that at the time and place of her injury she had exceeded any invitation extended to her by defendant, thereby becoming a mere licensee. Gilliland v. Bondurant, 332 Mo. 881 59 S.W.2d 679; Stoll v. First Natl. Bank of Independence, 345 Mo. 582, 134 S.W.2d 97; 45 C. J. 809, sec. 220; Glaser v. Rothschild, 120 S.W. 1, 221 Mo. 180; Menteer v. Scalzo Fruit Co., 144 S.W. 833, 240 Mo. 177; Restatement of the Law of Torts, sec. 343, p. 941; Davis v. Ringolsky, 127 S.W. 625, 143 Mo.App. 364; Shaw v. Goldman, 92 S.W. 165, 116 Mo.App. 332; Ford v. Rockhill Quarries, 341 Mo. 1072, 111 S.W.2d 173. (a) Wilful or wanton negligence was neither pleaded nor proven; and there was no evidence or proof that plaintiff was in a position of peril and danger, or that defendant had or should have had knowledge thereof, so as to render defendant liable for any active negligence that may have been shown. Gilliland v. Bondurant, 59 S.W.2d 687; Evans v. Sears Roebuck, 129 S.W.2d 53; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31; Edwards v. Term. Ry. Assn., 341 Mo. 235, 108 S.W.2d 140; Stewart v. Mo. Pac. Ry. Co., 308 Mo. 383, 272 S.W. 694; Perry v. Fleming, 221 Mo.App. 1071, 296 S.W. 167; Kirkham v. Jenkins, 340 Mo. 911, 104 S.W.2d 234; State ex rel. Vulgamott v. Trimble, 300 Mo. 92, 253 S.W. 1014. (b) Defendant's employee was not shown to have done anything other than conduct defendant's business operations in the usual and ordinary manner at the time and place of plaintiff's injury, of which the plaintiff was fully aware; and she accepted the risk of injury by not only remaining there, but also by moving boxes and changing the situation she found. 45 C. J. 804, sec. 209; Roe v. St. Louis Packing Co., 203 Mo.App. 11, 217 S.W. 335. (c) The judgment is not supported by substantial evidence. Plaintiff's testimony is contrary to physical laws in that the undisputed evidence is that she was picked up at a point and in such a position as to make it physically impossible to have fallen in the manner she claims. Dunn v. Alton Ry. Co., 340 Mo. 1037, 104 S.W.2d 311; Maxwell v. Kansas City, 227 Mo.App. 234, 52 S.W.2d 487; Scroggins v. Met. St. Ry. Co., 120 S.W. 731, 138 Mo.App. 215. (2) The court erred in giving Instruction 1, requested by the plaintiff, because such instruction, although directing a verdict, did not require a finding that plaintiff was an invitee at the time and place of her injury, a necessary element of plaintiff's case. Further, said instruction, ignoring the issue of plaintiff's legal status on the platform, did not require a finding that plaintiff was in a position of peril and danger so as to authorize a recovery if plaintiff was a licensee. Also, said instruction is in conflict with instructions given on behalf of defendant. Gilliland v. Bondurant, 59 S.W.2d 687; Sherman v. Alexander & Sons, 108 S.W.2d 616; State ex rel. Long v. Ellison, 272 Mo. 591, 199 S.W. 984; Blackwell v. Union Pac. Ry. Co., 331 Mo. 34, 52 S.W.2d 814; State ex rel. Security Ins. Co. v. Trimble, 318 Mo. 173, 300 S.W. 812; Watson v. St. Joseph Coal Min. Co., 222 Mo.App. 718, 5 S.W.2d 124; Watson v. St. Joseph Coal Min. Co., 331 Mo. 475, 53 S.W.2d 895; State ex rel. Jefferson City v. Shain, 344 Mo. 57, 124 S.W.2d 1194; McCollum v. Winwood Amusement Co., 332 Mo. 779, 59 S.W.2d 693. (3) The court erred in failing to discharge the jury upon timely motion of defendant, when, without cause, plaintiff cried, wept and shed tears while on the witness stand. Ducoulombier v. Baldwin, 101 S.W.2d 96; Lynch v. Baldwin, 117 S.W.2d 276; Ullom v. Griffith, 263 S.W. 876. (4) The verdict of the jury is grossly excessive, unwarranted by the evidence, the result of sympathy for the plaintiff, either inspired or aggravated by plaintiff's crying and demonstration in the court room, and the result of passion and prejudice against the defendant. Lynch v. Baldwin, 117 S.W.2d 273; Crockett v. Kansas City Ry. Co., 243 S.W. 902; Meyers v. Wells, 273 S.W. 110; O'Brien v. Rindskopf, 334 Mo. 1233, 70 S.W.2d 1085; Jenkins v. Mo. State Life Ins. Co., 334 Mo. 941, 69 S.W.2d 666; Dorman v. East St. Louis Ry. Co., 335 Mo. 1082, 75 S.W.2d 854; Tate v. Western Union Tel. Co., 339 Mo. 262, 96 S.W.2d 364; Pandjiris v. Oliver Cadillac Co., 339 Mo. 711, 98 S.W.2d 969.

Homer A. Cope, Cope & Hadsell and Walter A. Raymond for respondent.

(1) Plaintiff's recovery is justified on the theory she was an invitee at the time and place of her injury. Gilliland v. Bondurant, 332 Mo. 881, 59 S.W.2d 683; Cento v. Security Bldg. Co., 99 S.W.2d 5; Watson v. St. Joseph Coal Min. Co., 222 Mo.App. 718, 5 S.W.2d 125; Watson v. St. Joseph Coal Min. Co., 331 Mo. 475, 53 S.W.2d 898; Philibert v. Benjamin Ansehl Co., 342 Mo. 1239, 119 S.W.2d 797; Yeck v. Adams, 61 S.W.2d 229; Restatement of the Law of Torts, sec. 343; Coffer v. Bradshaw, 46 Ga.App. 143, 167 S.E. 123; American Natl. Bank v. Wolfe, 125 S.W.2d 196; Knapp v. Connecticut Theatrical Corp., 122 Conn. 413, 190 A. 292; Georgia Power Co. v. Sheats, 199 S.E. 587. (a) The pleading and proof was sufficient to justify recovery even though plaintiff were a mere licensee and not an invitee. The act of appellant's servant in throwing a box on top of a pile of boxes behind the plaintiff was an act of active negligence for which appellant would be liable even to a licensee only. Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 3; Menteer v. Scalzo Fruit Co., 240 Mo. 177, 144 S.W. 834; Bender v. Weber, 250 Mo. 551, 167 S.W. 574; Evans v. Sears, Roebuck & Co., 129 S.W.2d 56; Restatement of the Law of Torts, sec. 341; Wessel v. Lavender, 262 Mo. 421, 171 S.W. 334; Mitchell v. Wabash Ry. Co., 334 Mo. 926, 69 S.W.2d 290; Westenhaver v. St. L.-S. F. Ry. Co., 340 Mo. 511, 102 S.W.2d 664; Hough v. C., R. I. & P. Ry. Co., 339 Mo. 1169, 100 S.W.2d 509; Grubbs v. Kansas City Pub. Serv. Co., 329 Mo. 390, 45 S.W.2d 79. (b) Defendant's employee was not conducting defendant's business in the usual and ordinary manner at the time of plaintiff's injury, nor did plaintiff have notice of the servant's intention to throw the box on top of the stack of boxes behind her. Roe v. St. Louis Packing Co., 203 Mo.App. 11, 217 S.W. 338; Watson v. St. Joseph Coal Min. Co., 222 Mo.App. 718, 5 S.W.2d 125. (c) The judgment is supported by substantial evidence. This court has nothing to do with the weight of the evidence. Hardin v. I. C. Ry. Co., 334 Mo. 1169, 70 S.W.2d 1084; Parrent v. M. & O. Ry. Co., 334 Mo. 1202, 70 S.W.2d 1073; Sakowski v. Baird, 334 Mo. 951, 69 S.W.2d 652; Miller v. Schaff, 228 S.W.2d 491; Lawson v. East St. Louis Ry. Co., 76 S.W.2d 455; Wise v. C., R. I. & P. Ry. Co., 335 Mo. 118, 76 S.W.2d 122; Young v. M.-K.-T. Ry. Co., 100 S.W.2d 934. (2) Plaintiff's Instruction 1 did require the jury to find plaintiff was an invitee at the time and place of her injury. There is no conflict between it and defendant's instructions and when all are considered together it is apparent this issue was properly submitted. Murphy v. Duerbeck, 19 S.W.2d 1043; Sullivan v. Union E. L. & P. Co., 331 Mo. 1065, 56 S.W.2d 102; Bennette v. Hader, 337 Mo. 977, 87 S.W.2d 416; Larey v. M.-K.-T. Ry. Co., 333 Mo. 949, 64 S.W.2d 684; Jenkins v. Mo. State Life Ins. Co., 334 Mo. 941, 69 S.W.2d 669; Deschner v. St. Louis & M. R. Ry. Co., 200 Mo. 310, 98 S.W. 743; Taylor v. Cleveland, C., C. & St. L. Ry. Co., 333 Mo. 650, 63 S.W.2d 74; Sherman v. Alexander & Son, 108 S.W.2d 620; State ex rel. Security Ins. Co. v. Trimble, 318 Mo. 173, 300 S.W. 813; Hastey v. Kaime, 297 S.W. 53; Carr v. St. Joseph, 225 S.W. 923; Connole v. East St. L. & Sub. Ry. Co., 340 Mo. 690, 102 S.W.2d 590; Watson v. St. Joseph Coal Mining Co., 222 Mo.App. 718, 5 S.W.2d 125. (3) The court committed no error in refusing to discharge the jury because the plaintiff, in her highly nervous condition, shed a few tears. Lynch v. Baldwin, 117 S.W.2d 276; Boyer v. Mo. Pac. Ry. Co., 293 S.W. 388; Marshak v. Brennan Gro. Co., 83 S.W.2d 188.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

Action for damages for personal injury alleged to have resulted by falling from a stair landing in defendant's store. The jury returned a verdict in favor of plaintiff for $ 15,000. Motion for a new trial was overruled and defendant appealed.

Defendant operated a retail grocery store, facing east, at 1108 Walnut Street, Kansas City, Missouri. Near the rear and on the south side of the store, a stairway led from the first to the second floor. The first five steps of the stairway are marble and go south, so to speak, to a marble landing, then turn west and go up to the second floor. The landing is 3 feet and 4 inches above the floor, and, in size, 4 feet 10 inches, by 4 feet, 5 inches. On the east wall of the landing, defendant had, for the convenience and use of its customers, two public pay telephones.

Plaintiff alleged that in the afternoon of April 16, 1938, she entered defendant's store for the purpose of purchasing merchandise and while therein found it necessary to use a telephone and that she went up the steps to the landing where the public pay telephones were; that there were some boxes of merchandise on the landing; and that an employee of defendant, while in the scope of his duty, negligently pitched a wooden delivery box with merchandise therein onto the landing and struck plaintiff's legs, or struck another box on the landing,...