Myers v. Moore, No. 21091.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtBland
Citation217 S.W.2d 291
PartiesLINDA EDNA MYERS, A MINOR BY HER NEXT FRIEND, LUCY MYERS, RESPONDENT v. KATHERYNE MOORE, DOING BUSINESS AS MOTHER GOOSE NURSERY, APPELLANT.
Decision Date10 January 1949
Docket NumberNo. 21091.
217 S.W.2d 291
LINDA EDNA MYERS, A MINOR BY HER NEXT FRIEND, LUCY MYERS, RESPONDENT
v.
KATHERYNE MOORE, DOING BUSINESS AS MOTHER GOOSE NURSERY, APPELLANT.
No. 21091.
Kansas City Court of Appeals. Missouri.
Opinion delivered January 10, 1949.

[217 S.W.2d 292]

Appeal from Circuit Court of Jackson County. — Hon. James W. Broaddus, Judge.

JUDGMENT AFFIRMED.

R. Carter Tucker, John Murphy, Wm. H. Wilson, J. Gordon Siddens and C. Thomas Carr for appellant.

(1) The trial court erred in overruling defendant's motion for a directed verdict and in overruling defendant's motion to set aside the verdict and judgment for plaintiff and for judgment for defendant in accordance with defendant's motion for a directed verdict. Plaintiff's petition failed to state facts sufficient to constitute a claim for relief against this defendant. Geninazza v. R.Z. Leonori Auction & Storage Co., (Mo.) 252 S.W. 417, 419; Charlton v. Lovelace, (Mo.) 173 S.W. 2d 13, 18, 19; McCloskey v. Koplar, (Mo.) 46 S.W. 2d 557, 559; Davidson v. Missouri Orpheum Corp., (Mo. App.) 161 S.W. 2d 707, 709. Zichler v. St. Louis Public Service Co., (Mo.) 59 S.W. 2d 654, 657. (2) At the close of plaintiff's evidence all of the evidence disclosed that plaintiff had failed to prove facts sufficient to constitute a claim for relief against the defendant. Under the applicable law, all the evidence discloses that plaintiff failed to prove facts sufficient to constitute a claim for relief against the defendant. Belding v. St. Louis Public Service Co., (Mo. App.) 205 S.W. 2d 866. 869, 870; (Mo.) 30 C.C.H. Automobile Cases 315 et seq; Semler v. Kansas City Public Service Co., (Mo.) 196 S.W. 2d 197, 200; Charlton v. Lovelace, (Mo.) 173 S.W. 2d 13, 16, 17, 18, 19, 20; Cunningham v. Neil House Hotel Co., (Ohio App.) 33 N.E. 2d 859, 861; McCloskey v. Koplar, (Mo. Sup.) 46 S.W. 2d 557, 559; Hart v. Emery, Bird, Thayer Dry Goods Co., (Mo. App.) 118 S.W. 2d 509, 511. (3) Under all of the applicable decisions of the courts of this state the proposition contended for by plaintiff is not the law and is wholly untenable. Semler v. Kansas City Public Service Co., (Mo. Sup.) 196 S.W. 2d 197, 200. (4) In no instance can the bare fact that an injury has happened justify the inference that the injury was caused by negligence. Charlton v. Lovelace, (Mo. Sup.) 173 S.W. 2d 13, 17, 18, 19; See also Mueller v. St. Louis Public Service Co., (Mo. Sup.) 214 S.W. 2d 1; Benedict v. Potts, 40 Atl. 1067, 1068, 1069, 88 Maryland 52. The principles announced in the Potts case have been adopted and applied many times by the courts of this state, e.g. Charlton v. Lovelace, supra.

Richard H. Beeson, David P. Dabbs and Dean F. Arnold for respondent.

The verdict and judgment in favor of plaintiff are supported by the petition and the evidence. Danville Community Hospital v. Thompson, (1947) 186 Va. 746, 43 S.E. 2d 882, 173 A.L.R. 525, l.c. 532; Ybarra v. Spangard, (1944) 25 Cal. 2d 486, 162 A.L.R. 1258, 154 Pac. 2d 687, l.c. 689; Adams v. University Hospital, 122 Mo. App. 675, 99 S.W. 453, l.c. 453; Freeman v. Foreman, 141 Mo. App. 359, 125 S.W. 524; Whetstine v. Moravec, 228 Iowa 352, 291 N.W. 425, l.c. 435; Mahoney v. Harley Private Hospital, 279 Mass. 96, 180 N.E. 723; Stolovey v. Fleming, (Mo. No. 1) 8 S.W. 2d 832, l.c. 834.

BLAND, J.


This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $5000 and defendant has appealed. The facts show that defendant operates a business known as Mother Goose Nursery in Kansas City, and holds herself out as qualified and equipped for the care of infant children.

Lucy Kitchen, whose name was Lucy Myers at the time of the filing of the petition herein, testified that she was the mother of plaintiff; that about three p.m., on September 5, 1946, she took plaintiff, then about five weeks of age, to defendant's nursery, and after paying five dollars for one half week's care of the child she left to go to work. The witness made inquiry of the defendant concerning defendant's facilities for taking care of a child of the age of five weeks. Defendant told her, among other things, that "there was someone there with them (the children) all night." The next morning about eight o'clock, when the witness arrived at the nursery she was met by the nurse who took her to her daughter who was in a crib. The witness noticed a mass of blood around the child's feet. Her gown and the sheet were bloody and plaintiff's left hand was bleeding, but she saw no cut on plaintiff's face. Defendant then appeared and informed the witness that she did not know what had happened or how it could have happened. The witness left and returned to the nursery about two p.m. At that time plaintiff had bandages on her arms, hands, feet, legs and body; there were marks on plaintiff's face and "her body seemed to be swollen twice her size." Later in the afternoon the witness called Dr. Glasscock and asked him to see the plaintiff. The doctor saw plaintiff and recommended that she be taken to the hospital. The witness left her work about six-thirty, arrived at the nursery and took plaintiff to St. Luke's Hospital. Plaintiff remained there until September 22, when the witness took her home. Plaintiff now is nervous, has scars on the bottom of her feet, on her right ankle, on the small finger of her left hand, and in between her eyes. At the time of the accident the witness had left plaintiff in charge of defendant and had no charge or control over plaintiff during the time plaintiff was at the nursery, nor did she know how plaintiff received the injuries. The witness

217 S.W.2d 293

further testified that plaintiff was a normal baby and there was nothing the matter with her when she was left with defendant.

Dr. Glasscock testified that he saw plaintiff at St. Luke's Hospital on September 6, 1946. In answer to a question concerning the condition of the child when he saw her, he answered: "She had received several bites particularly on the extremities and particularly on the left foot. The two small toes on the left foot were lacerated, swollen and dark in color with some redness and swelling of the entire foot. There were a few evident bites on the legs and arms and several on the hand and on the other foot." He further testified that the child was anemic on account of the low red blood cell count. He further testified that he did not believe he could say definitely what caused the various lacerations on the child; that he saw two or three scratches on plaintiff's face. "The little toe on the left foot had apparently been chewed upon and the distal portion or part of it was gone when I saw the baby and on the 10th of September — on the 12th of September, the distal part of the little toe came off * * * sloughed off at that time."

Dr. Feierabend testified that he examined plaintiff on January 6, 1947 and again on November 14, 1947; that he found numerous red scars on her feet, legs, arms, hands and face; that the left little toe had been almost completely amputated.

Over the objection of defendant, plaintiff introduced the hospital records of plaintiff. Under date of September 7, 1946, the records show the following: "Two small toes on left...

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4 practice notes
  • Persinger v. STEP BY STEP INFANT DEV., No. A01A2001.
    • United States
    • United States Court of Appeals (Georgia)
    • February 15, 2002
    ...(1980) (negligence inferable where 25-month-old child sustained a skull fracture while in day care); Myers v. Moore, 240 Mo.App. 726, 217 S.W.2d 291 (1949) (negligence inferable where five-week-old child sustained animal bites while under the care of a But Dr. Alter's affidavit is sufficien......
  • Venditti v. St. Louis Public Service Co., No. 41410
    • United States
    • United States State Supreme Court of Missouri
    • January 9, 1950
    ...Co., 332 Mo. 902, 59 S.W.2d 654, 658[14, 15]. 2 329 Mo. 527, 46 S.W.2d 557, 559(2) et seq., 92 A.L.R. 641. See Myers v. Moore, Mo.App., 217 S.W.2d 291, 294; Scott v. The London & St. K. Docks Co., 159 Eng.Rep. 665, 34 L. J. Exch. 220, 13 L. T. 148; 45 C.J. 1193, Secs. 768 et seq.; 38 Am.Jur......
  • Ribovich v. Anheuser Busch, Inc., No. 95-2108-CIV-T-17.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • July 14, 1997
    ...the defendant possesses superior knowledge or means of information as to the cause of the occurrence." Myers v. Moore, 240 Mo.App. 726, 217 S.W.2d 291 (1949). As stated in McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 560[2], "the requirement that the instrumentality be under the managem......
  • Fowler v. Seaton
    • United States
    • California Court of Appeals
    • March 10, 1964
    ...culpable or innocent, is practically accessible to him but inaccessible to the injured person.'' In Myers v. Moore, 240 Mo.App. 726, 217 S.W.2d 291, the mother of a five-weeks'-old child left the child at a nursery which was operated by defendant, and the mother paid money to defendant for ......
4 cases
  • Persinger v. STEP BY STEP INFANT DEV., No. A01A2001.
    • United States
    • United States Court of Appeals (Georgia)
    • February 15, 2002
    ...(1980) (negligence inferable where 25-month-old child sustained a skull fracture while in day care); Myers v. Moore, 240 Mo.App. 726, 217 S.W.2d 291 (1949) (negligence inferable where five-week-old child sustained animal bites while under the care of a But Dr. Alter's affidavit is sufficien......
  • Venditti v. St. Louis Public Service Co., No. 41410
    • United States
    • United States State Supreme Court of Missouri
    • January 9, 1950
    ...Co., 332 Mo. 902, 59 S.W.2d 654, 658[14, 15]. 2 329 Mo. 527, 46 S.W.2d 557, 559(2) et seq., 92 A.L.R. 641. See Myers v. Moore, Mo.App., 217 S.W.2d 291, 294; Scott v. The London & St. K. Docks Co., 159 Eng.Rep. 665, 34 L. J. Exch. 220, 13 L. T. 148; 45 C.J. 1193, Secs. 768 et seq.; 38 Am.Jur......
  • Ribovich v. Anheuser Busch, Inc., No. 95-2108-CIV-T-17.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • July 14, 1997
    ...the defendant possesses superior knowledge or means of information as to the cause of the occurrence." Myers v. Moore, 240 Mo.App. 726, 217 S.W.2d 291 (1949). As stated in McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 560[2], "the requirement that the instrumentality be under the managem......
  • Fowler v. Seaton
    • United States
    • California Court of Appeals
    • March 10, 1964
    ...culpable or innocent, is practically accessible to him but inaccessible to the injured person.'' In Myers v. Moore, 240 Mo.App. 726, 217 S.W.2d 291, the mother of a five-weeks'-old child left the child at a nursery which was operated by defendant, and the mother paid money to defendant for ......

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