Newhouse v. St. Louis Bank Building & Equipment Co.

• Decision Date: 20 December 1930
• Parties: Luella Newhouse v. St. Louis Building & Equipment Company, Appellant
• Court: Missouri Supreme Court

33 S.W.2d 932

326 Mo. 1047

Luella Newhouse v. St. Louis Building & Equipment Company, Appellant

Supreme Court of Missouri

December 20, 1930

Appeal from Circuit Court of City of St. Louis; Hon. Erwin G Ossing, Judge.

Reversed.

Polk Williams & Campbell for appellant.

(1) The demurrers should have been sustained. (a) There is no sufficient evidence that Gander moved the office chair. (b) The master was not an insurer. To be held liable, he must have been bound. as a reasonable man, to have anticipated the reasonable likelihood of some injury to plaintiff from the chair. Zasemovich v. Am. Manuf. Co., 213 S.W. 802; Breen v. Drug Co., 248 S.W. 970; Ward v. Dry Goods Co., 248 Mo. 366; Cluett v. Light & Power Co., 205 S.W. 74; Evans v. Railroad Co., 222 Mo. 455; Beasley v. Transfer Co., 148 Mo. 420; Chandler v. Gas Co., 174 Mo. 329; Halloran v Pullman Co., 148 Mo.App. 247; Hysell v. Swift, 78 Mo.App. 47; Lawless v. Gas Light Co., 72 Mo.App. 683. (2) Attention may be properly called to the grave impolicy of converting ordinary office chairs into dangerous obstructions in an office. Cluett v. Elec. L. & P. Co., 220 S.W. 866. (3) Instruction D, with reference to reasonable anticipation of injury from the chair, should have been given. Lowe v. Railroad, 265 Mo. 587; Ward v. Dry Goods Co., 248 Mo. 366; Chandler v. Gas Co., 174 Mo. 329; Beasley v. Transfer Co., 148 Mo. 420; Halloran v. Pullman Co., 148 Mo.App. 247; Riger v. Lumber Co., 210 Mo.App. 322.

Douglas W. Robert for respondent.

(1) The court was correct in overruling defendant's demurrers to the evidence. (a) There was sufficient evidence that Gander moved the office chair. (b) We are not here concerned with the law of master and servant. It is foreign to the issues in this case. The suit is for primary negligence under the doctrine of respondeat superior. Lewis v. Am. Car & Foundry Co., 20 S.W.2d 600; Hughlett v. Lumber Co., 53 Mo.App. 87; Strode v. Conkey, 105 Mo.App. 12; Philips v. Telegraph Co., 194 Mo.App. 458; Wine v. Newcomb, Endicott & Co., 203 Mich. 445; Ginns v. Sherer Co., 219 Mass. 18; American Brew. Assn. v. Talbott, 141 Mo. 674. (2) Instruction D was properly refused. Am. Brew Co. v. Talbot, 141 Mo. 683; Cases cited under Point 1.

Cooley, C. Davis and Henwood, CC., concur.

OPINION

COOLEY

Plaintiff, respondent here, obtained a verdict against defendant for $ 15,000 in the Circuit Court of the City of St. Louis for personal injuries. The court required her to remit $ 5,000 of the verdict or submit to a new trial. She made the remittitur, and judgment was entered in her favor for $ 10,000, from which judgment defendant appeals.

Plaintiff was in the employ of defendant as a stenographer in defendant's offices in St. Louis. These offices consisted of several rooms, one of which was used by the president of defendant company and by Mr. J. B. Gander, its vice-president. In this room plaintiff was injured by stumbling and falling over the foot of an office chair, breaking her wrist. There were in the room three flat-topped desks. One, Mr. Gander's desk, was in the southwest corner of the room, placed with one side against the west wall and one side against the south wall. The president's desk was similarly placed in the northwest corner. Between these two was the other desk with one side against the west wall. The president and vice-president both occasionally used the latter desk, and upon a window sill to the west of it was kept a basket into which letters to be mailed and papers to be filed were placed. The central desk was thus north of Mr. Gander's desk, and the evidence indicates there was a space of about forty inches between them. Mr. Gander's office chair, over the foot of which plaintiff stumbled, was at the north side of his desk, and therefore between it and the central desk.

Plaintiff's usual working place was in another room, but it was part of her duties to examine the basket above mentioned from time to time and attend to the mailing of letters and filing of papers left there. On the day of her injury she went to the basket in the performance of this duty, passing between Gander's desk and the one to the north of it. It was about five o'clock on a May afternoon and the light in the office was good. Plaintiff saw no one in that room when she entered and went to the basket. Mr. Gander being then in an adjoining room discussing a business matter with a Mr. Davenport. After spending four or five minutes examining the papers in the basket, plaintiff turned to retrace her steps, stumbled over the foot of the office chair and fell, receiving the injury for which she sues. Her contention is that while she was absorbed in her work at the mail basket, Gander entered the room and in reaching for some papers on his desk and unknown to her, pulled his chair out from his desk and placed it in the passageway between his desk and the one north of it so that when she turned from the basket she was bound to fall over the chair. Defendant denies that Gander moved the chair, and further contends that if he did such act did not constitute negligence. Since there is a sharp controversy as to the sufficiency of the evidence to make a case for plaintiff it will be necessary to set out with some detail that part of it bearing upon the issue of liability.

Plaintiff testified on direct examination that in going to the basket she passed between Gander's desk and the one north of it; that his office chair was then in front (north) of his desk, "right up to his desk," with the back of the chair to the north; that "there was plenty of space to walk through there without watching;" that while she was facing west at the window she heard someone enter the room (through a door east of Gander's desk) and, turning her head, saw that it was Mr. Gander; that she did not see anybody else in the room. Her testimony proceeds thus:

"Q. After you picked up your papers what did you do? A. I turned to go back into my office.

"Q. Then what happened? A. I stumbled over the foot of the big chair.

"Q. Where was the chair then? A. It was in my way.

"Q. I mean in relation to the passageway? A. It didn't give me room to pass.

"Mr. Robert: Q. That is not the question -- was it still against the desk? A. No, sir; it was not.

"Q. Where was it then? A. It was in my way.

"Q. Was it in the path? A. It was.

"Q. In what direction was the back of the chair? A. The back of the chair was north.

"Q. That is, away from you? A. On the right of me as I passed to go east.

"Q. When you went into the passage, you say the chair was up against Mr. Gander's desk, to the south? A. Yes, sir.

"Q. And the back was to the north? A. Yes, sir.

"Q. And when you got back from the passage -- first, I will ask you how many steps you took before you struck that chair? A. Oh, I turned right around and struck it.

"Q. That close to you? A. Yes, sir; it was right in the way.

" Q. When you struck it, did you fall? A. When I struck it, I threw this hand up to catch hold of something. There was nothing but the flat-top desk to catch hold of. I couldn't catch hold of anything there, and I threw my hand out to protect myself like this (illustrating). I fell and took the roller chair with me.

"Q. You turned and what part of you struck the chair first. A. My foot.

"Q. Struck the bottom of the chair? A. Yes, sir.

"Q. Could you see, as you fell, in which direction the back of the chair was at the time you struck it? A. I took hold of the back of it.

"Q. Was the back toward you then? A. It was.

"Q. Just tell in which direction the back of the chair was when you hit it? A. The back of the chair was to the north.

"Q. It was to the north when you went in? A. It was."

Further along in her direct examination she testified that she did not see the chair before she struck it; that she did not see Mr. Gander pull the chair out from his desk; that she did not know before she stumbled over it that it had been pulled out; that she saw no one in the room except Mr. Gander; that she did not start to rush away from the basket, but moved in a leisurely way as she was accustomed to do.

On cross-examination she was asked if she had not testified in a deposition that she had turned from the basket and "rushed right out," to which she replied that she did not remember. Then followed these questions and answers:

"Q. Is it true that 'just as I turned I rushed out?' A. It wasn't exactly rushed. I was in a hurry of course.

"Q. Is it true you turned rapidly and started to rush out of the room? A. I don't think it was rushing."

Further, on cross-examination, she testified that the chair in question was a swivel chair, "a big easy office chair," which usually stood between Gander's desk and the desk north of it; that she had previously seen it pulled out from the desk.

"Q. How many steps did you take before you stumbled against this chair? A. I stumbled against it at once.

"Q. Do you mean you didn't take any steps? A. I don't know. It was done so quickly. I just turned and I stumbled . . .

"Q. You didn't take any steps? A. I don't know whether I took any steps, I turned and stumbled."

Proceeding, she testified that she struck against the foot of the chair with her right foot and in falling caught the top of the chair with her right hand, taking the chair down with her as she fell.

"Q. When you went in there on this occasion and up to that window, did you notice particularly the position this chair was in? A. I know there was plenty of room to go in. The chair was up against the desk.

"Q. Did you notice that particularly at the time? A. No.

"Q. Did you give it any special observation? A. No; nothing special but, had it been in my way, I would have noticed it.

"Q. Hadn't you ever moved the chair out of your way? ...