Oliver v. Lynn Meat Co., No. 23465.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtBecker
Citation93 S.W.2d 114
Docket NumberNo. 23465.
Decision Date07 April 1936
93 S.W.2d 114
No. 23465.
St. Louis Court of Appeals. Missouri.
Opinion filed April 7, 1936.
Appellant's motion for rehearing overruled April 28, 1936.

Appeal from the Circuit Court of the City of St. Louis. — Hon. Wilson A. Taylor, Judge.


Russell J. Horsefield and Richard Molloy for respondent.

(1) Where error is asserted in overruling defendant's demurrer to evidence, appealing party must bring all evidence before appellate court. Bertke v. Hoffman, 50 S.W. (2d) 107; Harrison v. Pounds, 190 Mo. 349, 351, 88 S.W. 713; Davis v. Vories, 141 Mo. 234, 241, 42 S.W. 707; O'Malley v. Construction Co., 255 Mo. 386, 164 S.W. 565; Milling Co. v. Hanebrink, 247 Mo. 212, 152 S.W. 354; Richardson v. Sheffield Car & Equipment Co. (Mo. App.), 7 S.W. (2d) 729. (2) In passing on demurrer to evidence, appellate court must consider testimony in light most favorable to plaintiff, and draw all reasonable inferences which might be drawn therefrom. Pevesdorf v. Union Elec. L. & P. Co. (Mo.), 64 S.W. (2d) 939; Christiansen v. St. L. Pub. Svc. Co. (Mo.), 62 S.W. (2d) 828; Gates v. Sanatorium (Mo.), 55 S.W. (2d) 424; Rickey v. N.Y. Life Ins. Co. (St. L.C. App.), 71 S.W. (2d) 88; Perkins v. K.C. Southern Ry. (Mo.), 49 S.W. (2d) 103; Potoshnick v. Pearline (Mo.), 43 S.W. (2d) 790. (3) Whether or not plaintiff and defendant were subject to the Workmen's Compensation Law was an affirmative defense, with the burden on defendant to plead and prove that defense. Simmons v. K.C. Jockey Club (Mo.), 66 S.W. (2d) 119; Lally v. Morris (Mo. App.), 26 S.W. (2d) 52, 55; Kempes v. Gluck, 327 Mo. 733, 39 S.W. (2d) 330, 333. (4) Plaintiff's statements in his deposition were not binding upon him at the trial to authorize the court in sustaining demurrer, and if there was any consistency between statements in the deposition and those in the trial, the appellate courts will take what was said at the trial. Davidson v. Ry. Co., 256 S.W. 269; Lorile v. Lumberman's Mutual Casualty Co., 8 S.W. (2d), l.c. 85; Wilson v. Marland Ref. Co. (Mo. App.), 7 S.W. (2d) 442. (5) Plaintiff's contributory negligence was for the jury. Kennedy v. Phillips (Mo.), 5 S.W. (2d) 33; Aiken v. Sidney Steel Scraper Co., 198 S.W. 1139; Northern v. Chesapeake & Gulf Fisheries Co. (Mo.), 8 S.W. (2d) 982; Cech v. Mallinckrodt Chem. Co., 20 S.W. (2d) 509. (6) If the failure on the part of plaintiff to give instructions covering his case was error, which we do not admit, it was not prejudicial to defendant, and error without prejudice is no ground for reversal. Dorman v. E. St. Louis Ry. Co., 75 S.W. (2d) 854; Brandon v. Carter et al., 119 Mo. 572, 24 S.W. 1035; State ex rel. v. Branch et al., 151 Mo. 622, 52 S.W. 390; Shinn v. United Ry. Co., 248 Mo. 173, 154 S.W. 103; Young v. Wheelock, 64 S.W. (2d), l.c. 956. (7) Under the evidence, plaintiff entered defendant's premises for the benefit of the defendant, and was an invitee to whom the defendant owed the duty of exercising ordinary care for plaintiff's safety. Kennedy v. Phillips, 5 S.W. (2d) 33; Simmons v. K.C. Jockey Club, 66 S.W. (2d) 119; Hake v. Buck Stove & Range Co., 234 S.W. 1061; Glazer v. Rothschild, 120 S.W. 1; Gilliand v. Bondurant, 59 S.W. 680; Kemp v. Doe Run Lead Co., 57 S.W. (2d) 758. (8) If the submission of the case without an instruction on plaintiff's theory of liability was error, it was not prejudicial to the defendant, because: (a) Instructions were given withdrawing all assignments except that based on the ordinance read to the jury, and plaintiff's counsel stated he was submitting the case only on that ground, hence the jury were informed that the violation of the ordinance was the only ground upon which a verdict was sought. In this situation the appellate court should presume that the jury considered only the violation of the ordinance. Prichard v. Dubinsky, 89 S.W. (2d) 530. (b) The evidence showed a violation of the ordinance. There was no disputed question of fact as to that matter. It is never error to assume a fact about which there is no dispute. Lovett v. Ry. Co., 295 S.W. 89; Avery v. Ins. Co., 295 S.W. 509; Rowland v. Ins. Co., 55 S.W. (2d) 1011; Midwest Trust Co., Admr., v. Davis, 233 S.W. 406. (c) Violation of the ordinance was negligence per se, and it was unnecessary to give an instruction requiring the jury to find it was negligence. Cech v. Mallinckrodt Chem. Co., 20 S.W. (2d) 509, l.c. 513; Sluder v. Transit Co., 189 Mo. 107, l.c. 134; Hale v. St. Joseph Ry., etc., Co., 230 S.W. 113, l.c. 120; Keeney v. Wells, 257 S.W. 1075; Strauchon v. Ry. Co., 232 Mo. 587. (d) There was no dispute but that the absence of the interlock was at least one of the proximate contributing causes of the casualty, hence it was not error to fail to instruct on that issue, even though the evidence may have shown other contributing causes. (e) The jury was adequately instructed at the instance of defendant on the only contested issues, namely, plaintiff's contributory negligence, and his status as licensee or invitee. Christopher v. C.B. & Q.R.R. Co., 55 S.W. (2d) 449, l.c. 452; Brown v. Terminal R.R. Assn., 85 S.W. (2d) 226. (9) The court is not bound to reverse this case under the authority of Dorman v. East St. Louis Ry. Co., 75 S.W. (2d) 854, because: (a) The opinion of the Supreme Court involved the construction of a statute, and therefore can act prospectively only. The instant case was tried prior to that decision. Eberle v. Koplar, 85 S.W. (2d) 919; State ex rel. v. Haid, 327 Mo. 567, 38 S.W. (2d) 44, l.c. 53. (b) Prior to the Dorman decision it was generally held that failure to instruct was nondirection and not misdirection. Buchanan v. Rechner, 62 S.W. (2d) 1071, l.c. 1073; Steinberg v. Merchants Bank, 67 S.W. (2d) 63. (c) The Dorman decision overruled previous cases, but did not reverse the judgment and did not decide that its holding should be retroactive.

Woodward & Evans for appellant.

(1) Defendant's instruction in the nature of a demurrer to the evidence should have been given for the following reasons: (a) At the time he was injured, plaintiff was a mere licensee on the premises of defendant and the latter would not be liable even though the elevator was negligently maintained. Kelly v. Benas, 217 Mo. 1, 116 S.W. 557; Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1; O'Brien v. Western Steel Co., 100 Mo. 182, 13 S.W. 402; 20 Ruling Case Law, par. 60, pp. 69-70; Menteer v. Scalzo Fruit Co., 240 Mo. 177, 144 S.W. 833; Roe v. Independent Packing Co., 203 Mo. App. 11, 217 S.W. 335; Davis v. Ringolsky, 143 Mo. App. 364, 127 S.W. 625; Boneau v. Swift & Co., 66 S.W. (2d) 172. (b) Plaintiff entered the elevator shaft without taking any precautions for his own safety, and was guilty of contributory negligence as a matter of law. Bonanomi v. Purcell, 287 Mo. 436, 230 S.W. 120; Cox v. Bondurant, 220 Mo. 948, 7 S.W. (2d) 403; Boesel v. Wells Fargo Co., 260 Mo. 463, 169 S.W. 110; Marshall v. United Rys. Co. (Mo.), 209 S.W. 931. (e) If plaintiff entered the premises for the purpose of performing some duty connected with his employment, his remedy was under the Compensation Law, and that remedy is exclusive. R.S. Mo. 1929, sec. 3300; Ransdell v. Int. Shoe Co., 329 Mo. 47, 44 S.W. (2d) 1. (2) The court erred in submitting the case to the jury without giving, or requiring the giving, of an instruction defining plaintiff's theory of liability and right, if any, to recover. Dorman v. East St. L. Ry. Co., 75 S.W. (2d) 854.


Plaintiff, respondent here, sued to recover damages for personal injuries resulting from a fall down an elevator shaft on defendant's premises.

The petition sets out that plaintiff was an invitee on the premises and in attempting to use the elevator was caused to fall down the shaft by reason of defendant's negligence in failing to equip the elevator with an interlock which would prevent the opening of any shaftway door or gate unless the elevator platform was within six inches of that particular landing, all in violation of an ordinance of the city of St. Louis.

The answer generally denied the allegations of the petition, and affirmatively alleged that plaintiff's injuries were caused by his own carelessness and negligence in stepping into an unlighted elevator shaft when he should have known that the elevator was at another floor, and without exercising ordinary care to discover that the elevator was not at the first floor level. The reply generally denied this assertion on the part of defendant.

93 S.W.2d 115

The evidence shows substantially the following situation: Defendant is engaged in the retail food business and maintains a large store at the northeast corner of Sixth and Morgan (now Delmar) streets in the city of St. Louis. The first floor of this building is reserved for customers, while the upper floors are used for various utility purposes, such as storage of goods and live poultry and a bakery department. The basement is also used for various purposes, among others, a section equipped with large kettles and other devices for the dressing of poultry. In order to reach the various floors...

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