Rauh v. Interco, Inc.

• Decision Date: 19 November 1985
• Docket Number: No. 48757,48757
• Citation: 702 S.W.2d 497
• Parties: Betty Lou RAUH, Plaintiff-Respondent, v. INTERCO, INC., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 497

702 S.W.2d 497

Betty Lou RAUH, Plaintiff-Respondent, v. INTERCO, INC., Defendant-Appellant.

No. 48757.

Missouri Court of Appeals,

Eastern District,

Division Four.

Nov. 19, 1985.

Motion for Rehearing and/or Transfer

Denied Dec. 23, 1985.

Mark Michael Anson, Robert F. Wiegert, St. Louis, for defendant-appellant.

Thomas J. Casey, St. Louis, for plaintiff-respondent.

KELLY, Judge.

Defendant Interco, Inc., a Missouri Corporation, appeals from an order of the Circuit Court of the City of St. Louis "overruling its motion for new trial, judgment N.O.V., or other post-trial relief" in a jury-tried case wherein the plaintiff, Betty Lou Rauh, obtained a judgment in the amount of $105,000.00. Interco, as appellant shall hereinafter be identified, contends on appeal inter alia, that (1) the trial court erred in denying its motions for post-trial relief in that based on the facts in evidence Ms. Rauh was not entitled to recover a judgment against it as a matter of law; (2) instructional error, and (3) in the admission and exclusion of certain evidence. Because we hold that the evidence viewed most favorably in support of the judgment did not, as a matter of law, make a submissible case, we do not reach the other contentions.

Prior to considering the evidence and whether a submissible case was made we must dispose of a jurisdictional issue raised by Ms. Rauh in her brief. Interco's Notice of Appeal states that this appeal is from the order of the trial court overruling its post-trial motion for judgment in accordance with its motion for a directed verdict, or, in the alternative, for either a new trial, judgment notwithstanding the verdict, or other post-trial relief.

Ms. Rauh contends that this appeal must be dismissed because Interco is appealing from a post-trial order which is non-appealable. A Notice of Appeal seeking the review of such an order has been held to be ineffectual to bring anything before the appellate court. In support of this proposition Ms. Rauh relies on Pittman v. Reynolds, 679 S.W.2d 892, 893[1, 2] (Mo.App.1984); Haywood v. Haywood, 527 S.W.2d 36, 37[1, 2, 3] (Mo.App.1975); Cady v. Kansas City Southern Ry. Co., 512 S.W.2d 882, 884[2, 3, 4] (Mo.App.1974).

These cases cited by Ms. Rauh posed situations in which the appellant's attempt to appeal from orders on post-trial motions instead of the underlying judgment were accompanied by a number of other procedural errors. Pittman, supra, at p. 893 stated:

We are aware that inadequacy in the content of the notice of appeal has frequently been waived by the appellate courts of this state where the interests of justice were perceived by the court to warrant consideration of the merits of the appeal as briefed and argued. (cites omitted) The doctrine of leniency, however has apparently been extended ex gratia and without discernible uniformity. (cites ommitted) Where violation of the appeal requirements of Rule 81.08(a) has not resulted in dismissal of the appeal, the decisions at least recite a good faith attempt by the appellant to present issues which are both cognizable by the appellate court and discernible from the briefs and the record.

The Western District of this court has pointed out in Mullen v. Renner, 685 S.W.2d 212, 214 (Mo.App.1985) that an attempt to appeal from a non-appealable post-judgment order may or may not be a basis for dismissal of the appeal, depending on perception by the appellate court of the interests of justice, the inadvertance of the mistake and the presence or the absence of a good faith attempt to present an issue cognizable for appeal and discernible from the briefs and record.

We conclude that this appeal, where the question whether the plaintiff made a submissible case for the jury is raised, briefed, and argued is one in which the interests of justice requires that we exercise the "doctrine of leniency" referred to in Pittman and afford Interco review.

Having decided to consider whether Ms. Rauh made a submissible case against Interco and whether the trial court erred in overruling Interco's motion for directed verdict at the close of all of the evidence, the appellate court reviews the evidence from a viewpoint most favorable to the plaintiff and gives the plaintiff the benefit of every reasonable inference which the evidence tends to support and disregards the defendant's evidence which does not support the plaintiff's case. Hansome v. Northwestern Cooperage Co., 679 S.W.2d 273, 274 (Mo. banc 1984).

Viewed in this light, the evidence was that the plaintiff, Betty Lou Rauh fell on the public sidewalk in front of the Globe-Democrat Building at 710 North Tucker Boulevard in the City of St. Louis on November 16, 1979. The defendant, Interco, was the owner of the building. Ms. Rauh had been employed by Color Press for thirty years and for the past ten years Color Press had been located in the building.

The Globe-Democrat Building occupies the entire block on North Tucker Boulevard on the east side of the street. The main entrance to the building is in the middle of the block and there is a concrete public sidewalk approximately ten feet wide along Tucker Boulevard in front of the building. Three to four hundred people use the front entrance daily. Ms. Rauh normally uses this entrance.

On the day of the occurrence Ms. Rauh had been at work and left the building to go to a restaurant across Tucker Boulevard for a lunch break. After lunch she crossed Tucker Boulevard on her way back to the building. There were twenty to thirty people standing on the public sidewalk in front of the main entrance to the building. People were also standing right at the edge of the curb. Ms. Rauh was watching and trying to avoid the people on the public sidewalk as she approached the curb on the east side of Tucker Boulevard in order to make her way into the building. When Ms. Rauh took her first step onto the public sidewalk from the street she tripped and fell forward onto her hands and knees.

Extensive evidence was presented at trial by both sides relative to the nature and extent of the injuries sustained by Ms. Rauh as a result of her fall. However, because of the decision we reach on the question whether she made a submissible case it would serve no purpose to detail them. The jury concluded that she sustained serious and permanent injuries as evidenced by the size of the damages it awarded her.

The area on the sidewalk where Ms. Rauh fell was conceded by the parties to be cracked and in disrepair for a number of years prior to the occurrence. Testimony at trial showed that the condition of the sidewalk was a regular topic of conversation at Ms. Rauh's place of employment. Although photographs of the broken public sidewalk were admitted into evidence at trial it was stipulated that these photographs were not taken in 1979, near the time of the occurrence, but rather several years later in preparation for depositions. In any event, the record in the trial court is insufficient to establish the exact extent of the deterioration or the size and dimensions of the cracked area where Ms. Rauh tripped and fell. All that can be gleaned from the record is that at the point where Ms. Rauh fell the area had previously been patched with asphalt material which over time had crumbled and cracked, leaving a hole in the public sidewalk.

Interco's employees had patched the area where Ms. Rauh fell with asphalt approximately three years prior to the occurrence. While similar repairs had been made by Interco in the summer of 1979 they were mostly limited to the patching of the public sidewalk's expansion joints. Interco did not undertake to do any further patching or maintenance beyond its original repairs to this area of the public sidewalk.

As we have noted hereinabove, Ms. Rauh was well aware of the public sidewalk's condition. Although the day of the occurrence was chilly, the sun was shining, so that weather conditions were not a factor contributing to Ms. Rauh's fall. There was also a lack of any obstructions which might have blocked Ms. Rauh's way to the main entrance to the building. The only thing in Ms. Rauh's way as she crossed the street were the people standing on the public sidewalk. She admitted that in trying to avoid these people she had failed to look down at the surface of the public sidewalk.

The jury returned a verdict for Ms. Rauh in the amount of $175,000.00, but assessed fault to her of 40%, thereby reducing the award to $105,000.00.

Interco contends on appeal that the trial court erred in overruling its motions for post-trial relief and in allowing the case to be submitted to the jury. It argues that under the evidence it cannot be held liable for the condition of the sidewalk as a matter of law. We agree.

The parties are in agreement that the general rule in Missouri is that the affirmative duty to maintain public sidewalks rests on the municipality. Word v. City of St. Louis, 617 S.W.2d 479, 480 n. 1 [1, 2, 3] (Mo.App.1981). Both parties also recognize that there are two standard exceptions to this rule. One is termed the "special use exception." This exception applies when an abutting property owner has made use of the public sidewalk for some other purpose than merely using them as a public sidewalk, such as a driveway, or where the abutting owner puts an obstruction on the public sidewalk which was not a part of the public...