Murray v. Ralph D'Oench Co.

• Decision Date: 14 February 1941
• Docket Number: 37138
• Citation: 147 S.W.2d 623,347 Mo. 365
• Parties: Carrie Murray v. Ralph D'Oench Company et al., Defendants, Ralph D'Oench Company, Appellant
• Court: Missouri Supreme Court

147 S.W.2d 623

347 Mo. 365

Carrie Murray v. Ralph D'Oench Company et al., Defendants, Ralph D'Oench Company, Appellant

No. 37138

Supreme Court of Missouri

February 14, 1941

Appeal from Circuit Court of City of St. Louis; Hon. Thos. J Rowe, Judge.

Reversed.

J D. Leritz and Merritt U. Hayden for appellant;

John W. Giesecke of counsel.

(1) This judgment should be reversed. The trial court should have given appellant's demurrer to the evidence, offered and requested at the close of respondent's evidence, for the following reasons: (a) There was no substantial evidence tending to establish appellant's negligence generally nor that any act of appellant's employee, Nathan McClung, which contributed, in any degree, to respondent's injury, was performed by him while acting for appellant, or within the scope of his employment by appellant. Vert v. Metropolitan Life Ins. Co., 342 Mo. 629, 117 S.W.2d 252; 39 C. J., pp. 1274, 1275, sec. 1462; Roman v. Hendricks, 80 S.W.2d 907; 18 R. C. L., sec. 244, p. 784; Wolf v. Terminal Ry. Assn., 282 Mo. 559; State ex rel. Gosselin v. Trimble, 328 Mo. 760, 41 S.W.2d 801; Kourik v. English, 100 S.W.2d 901; La Bella v. Telephone Co., 24 S.W.2d 1075; Nichols v. Ry. Co., 232 S.W. 277, citing Fensky v. Casualty Co., 264 Mo. 154, 174 S.W. 416; Barnes v. Real Silk Hosiery Mills, 341 Mo. 563, 108 S.W.2d 58. (b) Having refused the first demurrer, appellant's demurrer to the evidence, requested at the close of all the evidence, should have been given. Ambruster v. Leavitt Realty & Inv. Co., 341 Mo. 364, 107 S.W.2d 74; Elkin v. St. Louis Pub. Serv. Co., 337 Mo. 951, 74 S.W.2d 600. (2) There is a failure of proof of any of the acts of negligence alleged in respondent's petition. 20 R. C. L., sec. 52, p. 56; Cluett v. Union E. L. & P. Co., 220 S.W. 865; Main v. Lehman, 294 Mo. 579; Mullen v. Sensenbrenner Mercantile Co., 260 S.W. 982; Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278; Lindquist v. Kresge Co., 136 S.W.2d 303; Lambert v. Jones, 339 Mo. 677, 98 S.W.2d 752; Dierkes v. Wolf-Swehla D. G. Co., 210 Mo.App. 142, 243 S.W. 269; Mahnken v. Gillespie, 329 Mo. 51, 43 S.W.2d 797; Cash v. Sonken-Galamba Co., 17 S.W.2d 927; Bert v. Rhodes, 258 S.W. 40; Gray v. Pearline, 43 S.W.2d 802; Beitch v. Central Terminal Co., 122 S.W.2d 94; Goetz v. Hydraulic-Press Brick Co., 329 Mo. 586, 9 S.W.2d 606. (3) Respondent was, or should be held to have been, thoroughly familiar with all of the condition existing at the time and place of the accident, which contributed to her injury. She had been warned of the location of the alleged wet, or damp, spot on the floor, almost immediately before she fell. She knew where it was located and how to avoid it. It was plainly visible. She had passed either over or right beside it just before she fell. It was easily avoidable by the exercise of ordinary care. It was her duty to exercise such care, which she failed to do. Her injury was, thus, due to her own contributory negligence as a matter of law. 20 R. C. L., sec. 52, p. 56; State ex rel. Sirkin v. Hostetter, 101 S.W.2d 50; Mockowik v. Railroad Co., 196 Mo. 550, 94 S.W. 257; Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369; Wheat v. St. Louis, 179 Mo. 572, 78 S.W. 790; Craine v. Metropolitan Street Ry. Co., 246 Mo. 393, 152 S.W. 24; Waldmann v. Skrainka Const. Co., 289 Mo. 622, 233 S.W. 242; Cash v. Sonken-Galamba Co., 17 S.W.2d 927.

Reardon & Lyng and John H. Martin for respondent.

(1) The demurrer to the evidence requested by appellant at the close of plaintiff's case, and again at the close of the entire case, was properly overruled, for the agency of the janitor in mopping the floor was proved. There was no evidence to show a change in this relationship as between McClung and the appellant, nor was there any evidence to show that McClung was a loaned servant. 39 C. J., p. 1274, sec. 1462; 18 R. C. L., p. 784, sec. 244; Roman v. Hendricks, 80 S.W.2d 907; Vert v. Metropolitan Life Ins. Co., 117 S.W.2d 252; State ex rel. v. Trimble, 41 S.W.2d 801. (2) The negligence with which the appellant was charged in the petition on which this case was tried was established by the evidence. 2 Amer. Law Inst., Restatement of Torts, chap. 13, sec. 387; Orcutt v. Century Bldg. Co., 99 S.W. 1062, 112 S.W. 532; Carson v. Quinn, 105 S.W. 1088; Guthrie v. Wenzlick R. E. Co., 54 S.W.2d 801; Stith v. Newberry Co., 79 S.W.2d 447; Scott v. Kline's, Inc., 284 S.W. 831; Wendt v. Zettlosen Mfg. Co., 229 S.W. 1107; Milzark v. Natl. Biscuit Co., 259 S.W. 832; Mueller v. Ralston Purina Co., 254 S.W. 720; Vogt v. Wurmb, 300 S.W. 278; Smith v. Sears-Roebuck & Co., 84 S.W.2d 414. (3) Plaintiff was not contributorily negligent as a matter of law. Parton v. Phillips Petroleum Co., 107 S.W.2d 167; Cento v. Security Bldg. Co., 99 S.W.2d 1; Howard v. Sacks Co., 76 S.W.2d 460. (4) The giving of Instruction 1 was not error. (5) The verdict was not excessive. Berry v. B. & O. Ry. Co., 43 S.W.2d 782; Davis v. Buck Stove & Range Co., 49 S.W.2d 47; Baker v. Chicago, B. & Q. Ry. Co., 39 S.W.2d 535; Christenson v. St. Louis Pub. Serv. Co., 62 S.W. 828; Byers v. St. Louis Pub. Serv. Co., 66 S.W. 894; Zichler v. St. Louis Pub. Serv. Co., 59 S.W.2d 654; Margulis v. Natl. Enameling & Stamping Co., 23 S.W.2d 1049.

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

OPINION

HYDE

This is an action for damages for personal injuries, sustained as the result of a fall on a slick linoleum floor of a beauty parlor in a building under defendant's management. Plaintiff had a jury verdict for $ 10,000. From the judgment entered therein, defendant has appealed.

Defendant corporation was engaged in the building management business and had charge of renting, servicing and operating the building under a contract with the owner. The negligence charged and submitted was causing and permitting a dangerous and unsafe condition of the floor, failure to warn of the condition of the floor, and failing to remedy the condition of the floor. Defendant's answer was a general denial and a plea of contributory negligence. Defendant contends that plaintiff failed to make a jury case and that the court erred in refusing its peremptory instruction, in the nature of a demurrer to the evidence. Therefore, we will review the evidence and consider it from the viewpoint most favorable to plaintiff.

All of the testimony about the occurrence was by plaintiff's witnesses. Plaintiff's own testimony was, as follows:

"On October 26, 1937, I had an appointment for 9 o'clock at the Schaedler Beauty Parlor. I was right on time, within one minute either before or after. I was familiar with the premises, of course. . . . As I entered the waiting room Miss Schaedler and Mrs. Collins were standing over very near the door of the entrance into the operating room (also called the "work room") and the first thing that Miss Schaedler said to me as I stepped in, she says, 'Mrs. Murray, we are cleaning up a spot here,' and I said, 'Yes, all right.' . . . I took off my coat and hat and . . . went into the operating room. . . . It (the damp spot) was a little to the left of the door leading into the operating room -- not in the center. It was not right in front of the door. It was a little to the left as I went in, which would be on the east side, but there was plenty room on the other side for me to walk in. . . . I could see there was something there. I didn't see anything on it because I didn't look close enough. . . . I was there having my hair shampooed anywhere from five to ten minutes. . . . Some one said, 'Mrs. Murray, you have a phone call.' I think it was Miss Schaedler. . . . I got up and turned a little around very near that door -- the west end of that door, and took, I should say, perhaps just about two steps. It was very near. I fell immediately almost after I entered into this waiting room. . . . (Cross-examination) Q. Did she call your attention to the fact that she was cleaning up some spots? A. Yes, sir. . . . Q. And when she called your attention to that fact did she point out to you where that was located? A. Yes, sir; she was standing right by it -- right to the edge of it. Q. And you saw a wet spot there, did you? A. Well, I just glanced down. I thought it looked wet. Q. And you say it was about a foot and a half in diameter? A. I should say about that. It might have been a little wider. . . . Q. A little more than a foot from the door? A. Well, I didn't observe that so closely, but I know it was right behind a little place where they hang clothes there. (East from the offset in the wall, which made a vestibule or hallway between the two rooms.) . . . Q. Now, when Miss Schaedler pointed out the spot to you you walked into the work room and avoided that spot? A. Certainly. . . . Q. Did you observe (when called to the phone) whether or not it was still on the floor? A. I merely glanced as I always do -- as anyone would normally -- but I didn't notice anything. . . . Evidently I stepped two steps on the floor where it was clear because the minute I stepped on whatever it was, it was just like skating on ice and both my feet went in the air. Q. You don't know what you stepped on? A. No. . . . Q. Now, you say the light in the waiting room -- was that dark in there? A. Yes, sir; it was very poor. . . . Q. You noticed the room was dark and dingy? A. Yes, sir. There were no windows there. Q. Now, the light as you entered the room, did that in any way interfere with your seeing the floor? A. Yes, sir; I think it would. I was in my own light coming out from the light room." (Plaintiff said there was "a muddy color, dark dirty" substance "mottled" over "about fifteen inches or more" of her dress after she fell.)

While plaintiff said that she never saw the janitor (employed by defendant) until...