Myers v. Golloday

• Decision Date: 07 December 1936
• Docket Number: No. 18769.,18769.
• Parties: MYERS v. GOLLODAY et al.
• Court: Missouri Court of Appeals

104 S.W.2d 1007

MYERS v. GOLLODAY et al.

No. 18769.

Kansas City Court of Appeals. Missouri.

December 7, 1936.

Rehearing Denied April 5, 1937.

Appeal from Circuit Court, Linn County; Paul Van Osdol, Judge.

Action by Dollie Myers against H. L. Golloday and another. From a judgment for plaintiff, defendants appeal.

Affirmed.

Thomas P. Burns, of Brookfield, and Hunter & Chamier, of Moberly, for appellants.

Owen & Thurlo, of Brookfield, and Johnson, Garnett & Quinn, of Kansas City, for respondent.

REYNOLDS, Judge.

This is an action for personal injuries sustained by plaintiff, alleged to have been occasioned by the negligence of defendants in placing a large amount of wax, oil, or other substance unknown to plaintiff on the floor of the lobby of a theatre building known as the DeGraw Theatre in Brookfield, Mo., in which they were operating a moving picture show and in causing and permitting said floor to become slick, dangerous, and unsafe for persons walking thereon, upon which floor plaintiff walked and fell and injured herself as she entered said theatre through said lobby for the purpose of attending the moving picture show therein on May 26, 1935.

The particulars of the negligence charged more fully appear from plaintiff's petition, upon which this cause was instituted, filed in the circuit court of Linn county, Mo., at Brookfield on June 1, 1935. In such petition, it is alleged that defendant the Fox Ozark Theatre Company is a corporation holding and operating a theatre in Brookfield, Mo., known as the DeGraw Theatre; that it did so operate such theatre in Brookfield, Mo., at all times and dates mentioned in the petition for profit; that said corporation was engaged in showing films for the entertainment of the public upon paid admission thereto; that defendant H. L. Golloday was at all of the times mentioned in said petition the manager of defendant the Fox Ozark Theatre Company in charge of the said theatre in Brookfield being operated by it; that, on May 26, 1935, plaintiff entered into the theatre building being owned and thus operated by defendant the Fox Ozark Theatre Company under the control and management of defendant Golloday; and that, at the time of the injuries complained of, plaintiff had entered said theatre and the lobby thereof for the purpose of attending the moving picture show being exhibited therein by defendants. The petition recites: "* * * that defendants had negligently and carelessly placed upon the floor of the lobby of said theatre building aforesaid, a large amount of wax, oil, or other substance unknown to plaintiff, and had caused and permitted the floor of said theatre lobby to become slick, dangerous, and unsafe for persons walking thereon. That while plaintiff was in said theatre building, and the lobby thereof aforesaid, due to the carelessness and negligence of the defendants in permitting and causing the floor of said theatre lobby to become dangerous and unsafe to persons walking thereon, plaintiff slipped and fell upon the floor of said theatre lobby and sustained severe and permanent injuries, and at all said times, said defendants knew or by the exercise of ordinary care and diligence could have known that the floor of said theatre lobby was slippery and dangerous and unsafe for persons to walk thereon. That as a result of said fall, and by reason of the carelessness and negligence of the defendants as aforesaid, plaintiff was severely and seriously bruised, and that her back was severely sprained, wrenched, bruised, and dislocated and that she suffered a sacroiliac sprain, that her kidneys, female organs were mashed, bruised and injured, and that ever since said fall and as a result thereof she has been flowing, and that the tendons, ligaments and muscles of plaintiff's neck, arms, shoulders, legs and back were severely wrenched, bruised, twisted, sprained and torn. That by reason of said fall, plaintiff suffered a severe shock to her entire nervous system and has suffered great physical pain and mental anguish and will continue to suffer great physical pain and mental anguish in the future and so long as she lives, and that her injuries aforesaid are permanent." The prayer of the petition is for a judgment of $30,000 and costs.

The venue of the cause being transferred, in accordance with stipulations filed by all of the parties thereto, to the circuit court of Linn county at Linneus, defendants filed an amended answer in such court denying their negligence and setting up a plea of contributory negligence upon plaintiff's part. Upon a trial had in the circuit court of Linn county at Linneus before the judge of the court and a jury, a verdict was returned in favor of plaintiff for $4,000, upon which verdict a judgment was rendered for plaintiff in said sum on December 19, 1935, from which judgment the defendants, after unsuccessful motions for new trial and in arrest of judgment, prosecute this appeal.

Upon the trial, plaintiff introduced evidence tending to support the allegations of her petition. There is evidence to the effect that, on the afternoon of Sunday, May 26, 1935, plaintiff, a resident of Brookfield, Linn county, Mo., in company with her sister, Mrs. Effie Straub, and some small children, her nieces, attended the picture show at the DeGraw Theatre in Brookfield, being operated by defendants; that, on entering the theatre, she slipped and fell on the lobby floor just inside the entrance to the lobby, through which she passed to enter the show room; that, as a result of said fall, she received severe and permanent injuries to the lower part of her spine in the sacroiliac region and to her pelvic organs; that, by reason of such fall, her menstruation was deranged and became irregular, frequent, excessive, and painful whereas prior to that time her menstruation periods had always been regular; that, at the time she received such injuries and prior thereto, she was and had been in perfect health and physical condition, excepting that on an occasion eighteen years prior thereto she had been operated on successfully for appendicitis, from which operation she had fully recovered; that, at the time of her injuries, she weighed around two hundred pounds and was forty-five years of age. There is evidence showing that, in the latter part of April or the first part of May, 1935, shortly before she fell and received her injuries, the old lobby floor had been reconditioned; that an old linoleum which had formerly served as a covering was replaced by a composition tile known as tiletex with an asphalt base and an asbestos fiber binding to give it strength, cemented to the under floor, giving to the lobby floor a smooth surface; that this surface was waxed with water wax, a liquid known as Lightning Luster, containing wax and other solids with a large percentage of water, giving to the floor a dark, "shiny," slick, and glossy appearance and a smooth surface. It appears that this water wax had been applied regularly to the surface of the floor at least twice a week on Tuesdays and Fridays since it had been reconstructed and had been applied on the Friday before plaintiff fell. There is evidence to the effect that, at the time that plaintiff and her sister entered the lobby and all during that evening, the floor presented a dark, "shiny," and glossy appearance and a smooth and slick looking finish; that it not only presented a smooth, "shiny" appearance and a smooth and slick looking finish, but it was in fact smooth and slick; that it was about like glass; that it was a sort of polished linoleum, level and dry, as smooth as glass; and that there were no obstructions of any character on it to prevent a view of it by any one entering the lobby or to interfere with any one in the use of it. There is evidence showing that plaintiff drove directly from her home to the theatre in her car and alighted on a hard-surface concrete and brick street or pavement and walked over a hard-surface walk to the theatre building; that her feet never touched the ground from the time she left the house until she entered the theatre building; that she was simply dressed in an ensemble suit with jacket and dress; that, when she stepped inside the lobby, the light was such that she had a full view of the floor and could see it readily; that she was wearing a pair of black slippers which she had been using about a month; that she had been in the theatre attending the shows between the time the floor had been reconditioned and the date of her injury and had walked over the floor but had no opportunity of inspecting it on account of the large crowds usually present; that, upon the occasion of her injury, as she opened the door to enter the lobby, she turned to her right, taking only a step or two, if any, when both feet went out from under her and she fell flat on the floor, her whole body sliding and scooting on the floor; that she was picked up by two ushers who assisted her into the theatre where she found a seat and sat down; that she sat throughout the show and, when she undertook to get up after it was over, she was stiff and sore and had to be assisted; that one Dr. W. B. Simpson was called for and came about 7 o'clock that evening, at which time she was sore over her entire body and complained particularly of soreness in the region of her coccyx, the lower part of her sacroiliac region across the bottom of her spine, and of a pain in the small of her back and through her abdomen and her hips and particularly through the lower right side of her abdomen; that she began to menstruate that evening and flowed excessively and continued to flow for some two or three weeks; that, since such time, she has flowed frequently and excessively; that she was compelled to remain in bed under the care of her physician for a number of weeks and had, since such time, required the frequent attention of her physician on account of her pain and misery from her injuries and her frequent and...