Picarella v. Great Atlantic & Pacific Tea Co.

• Decision Date: 07 October 1958
• Docket Number: No. 29855,29855
• Citation: 316 S.W.2d 642
• Court: Missouri Court of Appeals
• Parties: Jennie PICARELLA (Plaintiff), Appellant, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, a Corporation (Defendant), Respondent.

Page 642

316 S.W.2d 642

Jennie PICARELLA (Plaintiff), Appellant, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, a Corporation

(Defendant), Respondent.

No. 29855.

St. Louis Court of Appeals, Missouri.

Oct. 7, 1958.

Motion for Rehearing or to Transfer to Supreme Court Denied

Nov. 3, 1958.

Ackerman & Schiller, Paxton H. Ackerman, Clayton, for appellant.

Hocker, Goodwin & MacGreevy, John M. Goodwin, George T. Swartz, St. Louis, for respondent.

DOERNER, Commissioner.

This is an action for damages for personal injuries claimed to have been sustained by the plaintiff when a large bottle of soda fell through a hole in the basket of a shopping cart she was using while selecting groceries in defendant's store. Judgment below was for the defendant, and plaintiff's appeal followed in due course.

Plaintiff then was 47 years old, weighed about 160 pounds, and wore an artificial limb, her left leg having been previously amputated above the knee. She arrived at defendant's supermarket on Saturday, February 4, 1956, at about 3:30 p. m., accompanied by her husband and their two sons, ages 8 and 10. On entering the store her younger son obtained one of a number of shopping carts setting in the front of the store, and wheeled it over to her. As was her custom, because of her physical disability, she used the shopping cart to lean on in walking about the store. The defendant's store was divided into a number of aisles, running in a northerly and southerly direction, and a series of check-out counters were strung in an easterly and westerly direction, near the front or south end of the store.

After obtaining the cart, plaintiff and her family proceeded down aisle number one, the most easterly aisle, where they picked up bread, milk, potato chips, and eggs. At the northern end of that aisle they turned south into aisle two, until they reached the point where the soda was located. Six bottles of Yukon Club soda, each the size of a fifth of a gallon, were selected by plaintiff's husband, who handed them to her, and she placed them standing upright across the back of the shopping basket. From that point the family walked to the southern end of aisle two, and turned northwardly into aisle three. Halfway down aisle three there was a break or passageway into aisle four, into which plaintiff and her family proceeded, and walked southwardly to the shelves where the spices were displayed. Plaintiff testified that as she was looking for her spices, and while holding on to the shopping cart, she felt something fall on the big toe of her right foot. She looked down and saw one of the bottles of soda that had been in the shopping cart lying next to her right foot. Plaintiff and her husband both testified that no one had hit or bumped the basket. Upon examining the basket on the shopping cart, it was then seen, for the first time, that four or five spokes were missing in the back, left hand corner of the basket, resulting in what was referred to in the testimony as a hole or space four or five inches wide.

Plaintiff, corroborated by her husband and elder son, described the basket as being straight sided, and made of wire spokes spaced about one inch apart, running vertically. The four sides of the basket were higher than the soda bottles standing upright in the back of the basket. This type of cart and basket was differentiated by the testimony for plaintiff from the newer type of cart, in which the basket is made of metal rods and has a slanting, hinged back, so that one basket can slide into another, referred to in the evidence as the 'nesting' type.

From the spice shelves the cart was wheeled to the check-out counter, where the accident was reported to the girl in the cashier's cage, who in turn called the manager. According to the evidence for the plaintiff, the manager went through the physical motions of attempting to put the bottle of soda in and out of the hole in the basket. Plaintiff's medical evidence showed that the great toe of her right foot was fractured, her foot became swollen and black and blue, and she was disabled for about six weeks.

On behalf of the defendant, Lawrence H. Gusnard, manager of the store, testified that he was in the cage with Mrs. Edith Jepsen, the cashier and bookkeeper, when he heard a crash, as if some bottles had struck the floor and broken, coming from in front of the check stands, whereupon he immediately walked there. A display of bottled beer packaged in bags, each containing six bottles, stacked one on top of the other, had been maintained at check-out stand number four. When he reached it he found that the front end of a shopping cart had been pushed against the bags of beer, some bottles were on the floor, and two were broken. The plaintiff was 'right there,' and he assumed the cart was hers. He saw the plaintiff's husband, but didn't remember exactly where he was standing. He did not see any children accompanying them. Not over a minute afterwards, plaintiff's husband told him that a soda bottle had struck his wife on her foot. He advised the plaintiff to give her name to Mrs. Jepsen so that a report could be turned into defendant's office. The plaintiff's husband showed him the hole in the back of the basket through which he said the bottle of soda had fallen. He examined it and found a wire missing. Normally, the wires were an inch apart. The cart was quite full of groceries, including, as he remembered, one bottle of soda in the back end of the cart, to the left of the hole. Subsequently, after the cart had been emptied, he took the cart to the soda section, got a bottle of the same kind, and attempted to put it through the hole in the basket, but it would not fit through the hole.

Gusnard directed Timothy Fague, a carry out boy, to clean up the broken bottles and the beer on the floor, and to put the shopping cart in the back of the store. Timothy corroborated the manager as to the beer display having been upset and the broken bottles being on the floor. He identified the shopping cart as one in which the back swings up, and stated that at Gusnard's direction he took the cart to the back room. He saw that there was a 'bar or two' missing. Mrs. Jepsen, when called on behalf of defendant, testified that she heard a crash that sounded like breaking glass, which came from the front of the store, but that she continued on with her work and didn't look outside the cage; that Gusnard, who had also been in the cage, left immediately after the crash; and that the next thing she knew about the accident was when a lady approached the cage about fifteen minutes after Gusnard had left, and told her that a bottle had fallen on her foot. She took the lady's name and address.

The identity of the shopping cart and basket thereon which the plaintiff had used was a controverted issue, the plaintiff, her husband, and elder son testifying that all four sides of the basket were straight, that it was made of wire spokes, and that the back was not hinged; while defendant's witnesses Gusnard and Fague testified that the only two kinds of shopping carts in the store on the day in question were the 'nesting' type, with the slanting, hinged back, and the 'baby cart' type, having a space in back of the basket for a child to sit. Defendant also introduced photographs of the cart it claimed the plaintiff had used, as well as the back of the same cart.

Plaintiff's first assignment of error is that the Court erred in permitting the defendant, over plaintiff's objection, to introduce evidence of new matter in the nature of contributory negligence, since the affirmative defense of contributory negligence was not pleaded. This assignment must be overruled for several reasons. First of all, in its answer, following a general denial, the defendant pleaded 'that whatever injuries and damages, if any, plaintiff is alleged to have sustained on the occasion mentioned in her petition were directly caused or contributed to by her own negligence.' The allegation that plaintiff's injuries were contributed to by her own negligence was a plea of contributory negligence, though in general terms. State ex rel. Shell Petroleum Corporation v. Hostetter, 348 Mo. 841, 156 S.W.2d 673; Kobusch v. Ruberoid Co., 355 Mo. 48, 194 S.W.2d 911. Plaintiff could, of course, by filing a timely motion, have required the defendant to make a more definite statement as to its plea of contributory negligence. Section 509.310 RSMo 1949, V.A.M.S. Having failed to do so, she may not now complain. The plea made here is distinguishable from the sole cause pleas made in the cases cited by plaintiff Karnes v. Ace Cab Company, Mo.App., 287 S.W.2d 378, and Janssens v. Thompson, 360 Mo. 351, 228 S.W.2d 743.

Secondly, we are cited to no place in the record where plaintiff objected to the introduction of any evidence of contributory negligence. The only reference made to any objections were those raised during the course of defendant's opening statement, made after plaintiff completed her case, when plaintiff objected to defendant's expectation of proof as to the shopping cart running into the beer display, and as to plaintiff's ability to see, when she placed the bottle of soda in the basket, that the bottle would go through the hole. The actual motion made by plaintiff at that time was for a mistrial, which was overruled. Plaintiff did state that, in anticipation that defendant's evidence would be along the lines set forth in its opening statement, and to avoid making constantly repeated objections when such evidence was introduced that she would stand 'on this objection.' Even if this could be considered an anticipatory objection to the evidence referred to, defendant expressly refused to agree to such a procedure, not did the Court approve it, and it was therefore incumbent upon the plaintiff to make a timely objection when such evidence was offered. Having failed to do so she may not now complain on appeal. Sandler v. Schmidt, Mo.Sup., 263 S.W.2d 35; ...