Pagan v. City of Kennett, No. 8661

CourtCourt of Appeal of Missouri (US)
Writing for the CourtSTONE; HOGAN, P.J., and TITUS
Citation427 S.W.2d 251
PartiesMadge Marie PAGAN and L. C. Pagan, her husband, Plaintiff-Appellants, v. CITY OF KENNETT, Missouri, a municipal corporation, Defendant-Respondent.
Decision Date02 April 1968
Docket NumberNo. 8661

Page 251

427 S.W.2d 251
Madge Marie PAGAN and L. C. Pagan, her husband, Plaintiff-Appellants,
v.
CITY OF KENNETT, Missouri, a municipal corporation,
Defendant-Respondent.
No. 8661.
Springfield Court of Appeals, Missouri.
April 2, 1968.

Page 252

Ford, Ford & Crow, Wendell W. Crow, Kennett, for plaintiffs-appellants.

Dalton, Treasure & Bullard, James C. Bullard, Kennett, for defendant-respondent.

STONE, Judge.

While walking along a public sidewalk in the City of Kennett, Missouri, about 10 A.M. on June 23, 1964, plaintiff Madge Marie Pagan, then 64 years of age, fell by reason of (so she alleged) 'an unsafe and dangerous condition . . . in that there was a drop of at least approximately four inches between two levels of the surface' of the sidewalk. In this suit against the City of Kennett as defendant, she sought in Count I of plaintiffs' first amended petition the sum of $10,000 for personal injuries, while in Count II of that petition her husband, plaintiff L. C. Pagan, sought $5,000 for expenses incurred in treatment of his wife's injuries and for loss of her services, society and consortium. The discovery deposition of plaintiff Madge Marie Pagan (hereinafter referred to as plaintiff) taken by defendant's counsel on September 22, 1966, was filed on September 27, 1966; and on the same date defendant filed its motion for summary judgment uner Rule 74.04 on the sole ground that, 'based on the pleadings, the evidence and the testimony, the plaintiff is guilty of contributory negligence as a matter of law, and is not entitled to recovery against the defendant.' (All references to rules are to the Supreme Court Rules of Civil Procedure, V.A.M.R.) On December 22, 1966, the court sustained defendant's motion and entered summary judgment for defendant. Upon this appeal by plaintiffs, our inquiry is whether, by evidence raising 'no genuine issue as to any material fact' (Rule 74.04(c)), defendant has presented 'unassailable proof' that plaintiff was contributorily negligent as a matter of law. Rule 74.04(h).

We note preliminarily certain principles and pronouncements relevant on this review. In ruling a motion for summary judgment, it is the duty of the trial court in the first instance, and it becomes our duty on appeal, to scrutinize the record in the light most favorable to the party against whom the motion was filed and the judgment was rendered, and to accord to such party the benefit of every doubt. Wood v. James B. Nutter & Co., Mo., 416 S.W.2d 635, 636(1); Campbell v. Stout, Mo.App., 408 S.W.2d 585, 588(3); Gasen's Drug Stores, Inc. v. Jones Enterprises, Inc., Mo.App., 388 S.W.2d 495, 500(4). A summary judgment may be rendered where, but only where, the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue of a material fact and that the movant is entitled to judgment as a matter of law (E. O. Dorsch Elec. Co. v. Knickerbocker Const. Co., Mo., 417 S.W.2d 936, 939; Stoffel v. Mayfair-Lennox Hotels, Inc., Mo.App., 387 S.W.2d 188, 190(2)); "(a) genuine issue of fact exists for the purpose of avoiding a summary judgment whenever there is the slightest doubt as

Page 253

to the facts" (Maddock v. Lewis, Mo., 386 S.W.2d 406, 409, certiorari denied 381 U.S. 929, 85 S.Ct. 1569, 14 L.Ed.2d 688; Elliott v. Harris, Mo. (banc), 423 S.W.2d 831, 835); and the burden rests upon the movant, in this instance upon defendant, to show by 'unassailable proof' (Rule 74.04(h)) that there is no genuine issue of fact (Nelson v. Browning, Mo., 391 S.W.2d 873, 877(1); Clampett, Summary Judgments in Missouri, 22 J.Mo.Bar 14, 17 (1966)) and that movant is entitled to judgment as a matter of law. Norman v. Willis, Mo.App., 402 S.W.2d 46, 47(1). See Cure v. City of Jefferson, Mo., 380 S.W.2d 305, 310(2).

Our appellate courts have repeatedly characterized a summary judgment as an extreme and drastic remedy and have warned that great care should be exercised in utilizing the procedure (e.g., Cooper v. Finke, Mo., 376 S.W.2d 225, 229(3); Anderson v. Steurer, Mo., 391 S.W.2d 839, 842(2); Maddock v. Lewis, supra, 386 S.W.2d at 408; E. O. Dorsch Elec. Co. v. Plaza Const. Co., Mo., 413 S.W.2d 167, 169(1); E. O. Dorsch Elec. Co. v. Knickerbocker Const. Co., supra, 417 S.W.2d at 938(1); Elliott v. Harris, supra, 423 S.W.2d at 835(6)); and, in an oft-cited landmark case, our Supreme Court has pointed out that "(s)ummary judgment will not usually be as feasible in negligence cases, where the standard of the reasonable man must be applied to conflicting testimony, as it is in other kinds of litigation.' In negligence cases the procedure is ordinarily used to attack some essential feature of plaintiff's case such as agency rather than the failure of one of the parties to use due care.' Cooper v. Finke, supra, 376 S.W.2d at 229. See 3 Barron and Holtzoff, Federal Practice and Procedure (Rules Edition), § 1232.1, p. 106.

Heedful of the foregoing, we proceed to a review of plaintiff's depositional testimony, upon which defendant solely relies to supply 'unassailable proof' that plaintiff was contributorily negligent as a matter of law. Plaintiff, a resident of the City of Kennett, had been shopping at several downtown stores on the day of accident and, when she fell, was on the way to her parked automobile. Alone at the time, she was walking south, still in the business district, 'more or less in the center' of the concrete sidewalk on the east side of Kennett Street, a north-south thoroughfare. The point of accident was near the south edge of the mouth of an east-west alley which ran between a variety store and a paint shop on the east side of Kennett Street. Plaintiff's testimony indicates that the concrete sidewalk ran across the mouth of the alley, and in their respective factual statements opposing counsel agree that the accident occurred 'on the public sidewalk.' The record discloses nothing concerning the weather on the day of accident, the width of the sidewalk or of the alley, the grade of either, or nearby pedestrian or vehicular traffic at the time of accident; and no photograph of the area under discussion is before us.

In one portion of her deposition, plaintiff testified that, at the north edge of the alley, there was 'a little, but very little' difference in the...

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19 practice notes
  • Citizens State Bank of Nevada v. Wales, No. 9053
    • United States
    • Court of Appeal of Missouri (US)
    • July 13, 1971
    ...(banc), 423 S.W.2d 831, 835; Pitman Mfg. Co. v. Centropolis Transfer Co., Mo., 461 S.W.2d 866, 873; Pagan v. City of Kennett, Mo.App., 427 S.W.2d 251, 252(3)); and the burden rests upon movant, in this instance upon plaintiff, to show by 'unassailable proof' (Rule 74.04(h)) that there is no......
  • Spires v. Lawless, No. 9262
    • United States
    • Missouri Court of Appeals
    • February 12, 1973
    ...to assume. This court fully stated the basic principles governing the review of summary judgments in Pagan v. City of Kennett, Mo.App., 427 S.W.2d 251, 252--253(1--4), from which we '. . . In ruling a motion for summary judgment, it is the duty of the trial court in the first instance, and ......
  • Weber v. Les Petite Academies, Inc., No. 34602
    • United States
    • Court of Appeal of Missouri (US)
    • January 9, 1973
    ...V.A.M.R.) that there are no genuine issues of fact, Nelson v. Browning, Mo., 391 S.W.2d 873, 877(1); Pagan v. City of Kennett, Mo.App., 427 S.W.2d 251. In this instance, defendants properly filed separate Page 280 motions for summary judgment pursuant to Civil Rule 74.04 along with supporti......
  • O'Leary v. McCarty, No. 34562
    • United States
    • Court of Appeal of Missouri (US)
    • February 27, 1973
    ...585, 588(3); Gasen's Drug Stores, Inc. v. Jones Enterprises, Inc., Mo.App., 388 S.W.2d 495, 500(4); Pagan v. City of Kennett, Mo.App., 427 S.W.2d 251, The question that the court must address itself to is, did Counts II and III allege a material issue of fact that would bar the trial court ......
  • Request a trial to view additional results
19 cases
  • Citizens State Bank of Nevada v. Wales, No. 9053
    • United States
    • Court of Appeal of Missouri (US)
    • July 13, 1971
    ...(banc), 423 S.W.2d 831, 835; Pitman Mfg. Co. v. Centropolis Transfer Co., Mo., 461 S.W.2d 866, 873; Pagan v. City of Kennett, Mo.App., 427 S.W.2d 251, 252(3)); and the burden rests upon movant, in this instance upon plaintiff, to show by 'unassailable proof' (Rule 74.04(h)) that there is no......
  • Spires v. Lawless, No. 9262
    • United States
    • Missouri Court of Appeals
    • February 12, 1973
    ...to assume. This court fully stated the basic principles governing the review of summary judgments in Pagan v. City of Kennett, Mo.App., 427 S.W.2d 251, 252--253(1--4), from which we '. . . In ruling a motion for summary judgment, it is the duty of the trial court in the first instance, and ......
  • Weber v. Les Petite Academies, Inc., No. 34602
    • United States
    • Court of Appeal of Missouri (US)
    • January 9, 1973
    ...V.A.M.R.) that there are no genuine issues of fact, Nelson v. Browning, Mo., 391 S.W.2d 873, 877(1); Pagan v. City of Kennett, Mo.App., 427 S.W.2d 251. In this instance, defendants properly filed separate Page 280 motions for summary judgment pursuant to Civil Rule 74.04 along with supporti......
  • O'Leary v. McCarty, No. 34562
    • United States
    • Court of Appeal of Missouri (US)
    • February 27, 1973
    ...585, 588(3); Gasen's Drug Stores, Inc. v. Jones Enterprises, Inc., Mo.App., 388 S.W.2d 495, 500(4); Pagan v. City of Kennett, Mo.App., 427 S.W.2d 251, The question that the court must address itself to is, did Counts II and III allege a material issue of fact that would bar the trial court ......
  • Request a trial to view additional results

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