Reinagel v. Walnuts Residence Co.
| Decision Date | 22 April 1946 |
| Citation | 194 S.W.2d 229,239 Mo.App. 701 |
| Parties | Herman G. Reinagel v. Walnuts Residence Company, a corporation |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court Jackson County; Hon. Thomas J. Seehorn Judge.
Reversed and remanded.
Cowgill & Popham, A. C. Popham, and Sam Mandell, for appellant.
(1) Even under the evidence most favorable to plaintiff, no actionable breach of duty to plaintiff was shown. Cash v Sonken-Galamba Co., 322 Mo. 349, 17 S.W.2d 927; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278, 279; Paubel v Hitz, 339 Mo. 274, 96 S.W.2d 369; Murray v. Ralph D'Oench Co., 347 Mo. 365, 147 S.W.2d 623; Reddy v. Joseph Garavelli, Inc. 232 Mo.App. 226, 102 S.W.2d 734; Stoll v. First National Bank of Independence, 234 Mo.App. 364, 132 S.W.2d 676; Stoll v. First National Bank of Independence, 345 Mo. 582, 134 S.W.2d 97; 20 R. C. L. 56, paragraph 52. (2) Plaintiff's proof failed to sustain any of the charges of negligence made in the petition. Cash v. Sonken-Galamba Co., supra; Hayes v. S. S. Kresge Co., (Mo. App.) 100 S.W.2d 325, 328. (3) Plaintiff's proof affirmatively showed that he voluntarily incurred whatever risk was present. Paubel v. Hitz, supra, 373, 374; Dietz v. Magill, (Mo. App.) 104 S.W.2d 707, 711; Stein v. Battenfeld Oil & Grease Co., 327 Mo. 804, 39 S.W.2d 345. (4) Plaintiff's proof showed that he was guilty of contributory negligence as a matter of law. Sash v. Sonken-Galamba Co., supra; Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369; Murray v. Ralph D'Oench Co., 347 Mo. 365, 147 S.W.2d 623; Curtis v. Capitol Stage Lines Co., 27 S.W.2d 747; Kellogg v. H. D. Lee Mercantile Co., 236 Mo.App. 699, 160 S.W.2d 838, 844; Main v. Lehman, 294 Mo. 579, 243 S.W. 91. (5) The trial court erred in giving plaintiff's instruction 1 submitting defendant's assumption to furnish necessary light to the garage, including the stall and platform. Cash v. Sonken-Galamba Co., supra; Dewey v. Kline's, Inc., 229 Mo.App. 1079, 86 S.W.2d 622, 625; Clarke v. Jackson, 342 Mo. 537, 116 S.W.2d 122; Robb v. St. Louis Public Service Co., 352 Mo. 566, 178 S.W.2d 443; Rothe v. Hull, 352 Mo. 926, 180 S.W.2d 7. (6) The trial court erred in refusing to discharge the jury at the request of defendant because of the inflammatory, improper and prejudicial argument and conduct of plaintiff's counsel in his closing argument to the jury. Atkinson v. United Railways Co., 286 Mo. 634, 228 S.W. 483, 485; Rothschild v. Barck, 324 Mo. 1121, 268 S.W.2d 760; Dunean v. City Ice Co., 25 S.W.2d 536; Cooper v. Metropolitan Life Ins. Co., 94 S.W.2d 1070; Huskey v. Metropolitan Life Ins. Co., 94 S.W.2d 1075; Chavaries v. National Life & Accident Ins. Co., 110 S.W.2d 790; Fitzgerald v. Thompson, 184 S.W.2d 198. (7) (a) The defendant was under no duty to light the "island" on which plaintiff slipped and fell. Lambert v. Jones, et al., 339 Mo. 677, 690, 98 S.W.2d 752, 760; Barber v. Kellogg, et al., 111 S.W.2d 201; Barber v. Kellogg, et al., 123 S.W.2d 100, 101; Darlington v. Railway Exchange Bldg., 183 S.W.2d 101; Sherman v. Alexander & Sons, (Mo. App.) 108 S.W.2d 616; Weinel v. Hesse, 174 S.W.2d 903, 909; Shearman and Redfiield Law of Negligence, Revised 1941 Edition, p. 1809. (b) Although it was under no duty to furnish light, plaintiff's evidence showed a custom and practice by which the defendant would furnish lights when requested, and that plaintiff knew of this custom and practice, but that plaintiff failed to call for lights at the time of his injury. Lambert v. Jones, supra. (8) Plaintiff's proof failed to sustain any of the charges of negligence made in the petition or to show any causal connection between the alleged negligence and plaintiff's injury. State ex rel. Thompson v. Shain et al. (banc), 349 Mo. 27, 159 S.W.2d 582, 588; Wills v. Berberich's Delivery Co., 345 Mo. 616, 134 S.W.2d 125 Raftery et al. v. Kansas City Gas Co., (Mo. App.) 169 S.W.2d 105, 110; Weisman v. Arrow Trucking Co., (Mo. App.) 176 S.W.2d 37, 39. (9) Plaintiff was guilty of contributory negligence as a matter of law. Kellogg v. H. D. Lee Mercantile Co., 236 Mo.App. 699, 160 S.W.2d 838. (10) Plaintiff voluntarily incurred whatever risk was present. Dietz v. Magill, (Mo. App.) 104 S.W.2d 707. (11) Plaintiff's Instruction 1 submitting defendant's assumption to furnish necessary light to the garage, including the stall and platform was erroneous. Rothe v. Hull, 352 Mo. 926, 180 S.W.2d 7, 8; Dewey v. Kline's, Inc., 229 Mo.App. 1079, 86 S.W.2d 622, 625. (12) Respondent is bound by the admissions in his brief. Maryville Mercantile Co. v. Hedgecock, 186 S.W. 55; State v. Ray, 225 S.W. 969, 974; In re Kelley's Estate, 213 Mo.App. 492, 255 S.W. 1064, 1069.
Nelson E. Johnson, R. R. Brewster, R. R. Brewster, Jr., and R. T. Brewster, for respondent.
(1) The defendant, having undertaken the duty of furnishing lights in the garage, was negligent and guilty of an actionable breach of duty in failing to furnish reasonably sufficient light to permit the plaintiff reasonably safe access to his stall. Barber v. Kellogg, (Mo.) 123 S.W.2d 100; Darlington v. Ry. Exchange Bldg., (Mo.) 183 S.W.2d 101; Tomlinson v. Marshall, 208 Mo.App. 381, 387, 236 S.W. 680, 682; 32 Am. Jur. Sec. 701, p. 576; McCloskey v. Salveter & Stewart Inv. Co., 317 Mo. 1156, 298 S.W. 226. (2) Plaintiff's proof sustained the charges of negligence in his petition and the Court rightfully denied defendant's motion for a directed verdict. 32 Am. Jur. Sec. 701, p. 576; Darlington v. Ry. Exchange Bldg., (Mo.) 183 S.W.2d 101; Sherman v. Alexander & Sons, (Mo. App.) 108 S.W.2d 616; Wilson v. Jones, (Mo. App.) 182 S.W. 756, 757; English v. Sahlender, (Mo. App.) 47 S.W.2d 151; Barber v. Kellogg, (Mo.) 123 S.W.2d 100; Restatement of the Law of Torts, Vol. II, Sec. 360, p. 976; Lambert v. Jones, 339 Mo. 677, 98 S.W.2d 752, 760; Johnson v. Street Ry. Co., 177 Mo.App. 298, 164 S.W. 128; Webster's New International Dictionary, p. 2063; Rothe v. Hull, 352 Mo. 926, 180 S.W.2d 7, 11; Dewey v. Kline's, Inc., 229 Mo.App. 1079, 80 S.W.2d 622, 626; Schwartz v. S. S. Kresge, 185 S.W.2d 37, 401. (3) Plaintiff was not guilty of contributory negligence as a matter of law; neither did he voluntarily incur a known and appreciated danger. Kellogg v. Lee Merc. Co., 136 Mo.App. 699, 160 S.W.2d 838; McCloskey v. Salveter & Stewart Inv. Co., 317 Mo. 1156, 298 S.W. 226, 235; Geninazza v. Auction & Storage Co., (Mo.) 252 S.W. 417, 419; Duff v. Eichler, (Mo.) 82 S.W.2d 881, 884; Deitz v. McGill, (Mo. App.) 104 S.W.2d 707, 711; Roman v. King, 289 Mo. 641, 233 S.W. 161, 164; 32 Am. Jur. Sec. 701, p. 576 (4) (a) Plaintiff's instruction No. 1 is not erroneous as submitting an issue not pleaded. Brasel v. Letts Box & Cooperage Co., 220 S.W. 984, 988; Schwanengeldt v. Metropolitan Street Ry. Co., 187 Mo.App. 588, 174 S.W. 143, 145; Kendrick v. Ryus, 225 Mo. 150, 123 S.W. 937, 942; Sellinger v. Cramer (Mo. App.) 208 S.W. 871, 873. (b) Respondent's motion for leave to amend petition by interlineation. Section 82, Code of Civil Procedure, Mo. Session Laws 1943 p. 378; Swift & Co. v. Young, 107 F.2d 170-172; In re Kantor's Delicatessen, 34 F.Supp. 898. (5) The trial court did not err in failing to sustain defendant's objection to the closing argument of plaintiff's counsel and in failing to discharge the jury on account thereof, nor was argument improper or prejudicial. Huskey v. Metropolitan Life Ins. Co., (Mo. App.) 94 S.W.2d 1075; Chavaries v. National Life & Accident Ins. Co., (Mo. App.) 110 S.W.2d 3790; Winkler v. Pittsburg C. C. & St. L. R. Co., (Mo.) 10 S.W.2d 649, 650; State ex rel. Kansas City Pub. Service Co. v. Bland, (Mo.), 30 S.W.2d 445. (6) The verdict is not excessive. Stoffer v. K. C. Public Service Co., 226 Mo.App. 376, 41 S.W.2d 614; Taylor v. Coal Co., 352 Mo. 1212, 181 S.W.2d 536; Davis v. Stove Co., 329 Mo. 1177, 49 S.W.2d 47; Trussell v. Waight, (Mo. App.) 285 S.W. 114.
This is a personal injury suit by Mr. Reinagel plaintiff, against Walnuts Residence Company, a Corporation, defendant. Plaintiff had a judgment in the amount of $ 6,000 and defendant appeals.
Defendant operated a large apartment hotel in Kansas City and, in connection therewith and as a part of its service to its tenants, it maintained and operated a garage in the rear thereof. At the time plaintiff received the injuries complained of, and for seven years prior thereto, he was employed by Mrs. Croysdale, a tenant of defendant, as her chaffeur. His duties required him to park his employer's automobile in defendant's garage and to drive it to and from the garage from time to time.
Plaintiff's evidence was to the effect that the garage is built partially under the apartment hotel but extends out therefrom under a patio and garden. It is entirely underground and while there are a number of small windows they are set in "wells" and admit very little light. It is about 175 feet long, from east to west, and has two driveways known as "North" and "South." On the north side, against the wall, is a row of eight or ten stalls, into each of which automobiles are backed against a concrete island. South of this row of cars is another concrete island, known as the center island which extends the length of the building, from a point south of and near the entrance, which is located on the north side and near the east wall. This center island is of concrete, rising some six or eight inches from the level of the floor, about six feet wide, its sides declining to the floor at an angle not perpendicular. Cars are backed into stalls so that, when parked, they are back to back. The north drive runs between two rows of cars facing each other; and the south drive runs south of and across the front of the cars parked along the south side of the center...
To continue reading
Request your trial