Salmons v. Dun & Bradstreet

• Decision Date: 16 April 1942
• Docket Number: 37775
• Citation: 162 S.W.2d 245,349 Mo. 498
• Parties: Mary E. Salmons v. Dun & Bradstreet, Appellant
• Court: Missouri Supreme Court

162 S.W.2d 245

349 Mo. 498

Mary E. Salmons v. Dun & Bradstreet, Appellant

No. 37775

Supreme Court of Missouri

April 16, 1942

Rehearing Denied June 3, 1942.

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Affirmed.

Lathrop Crane, Reynolds, Sawyer & Mersereau, Winston H. Woodson and James F. Walsh for appellant.

(1) Even though Jacobs was negligent, defendant is not liable therefor because Jacobs was walking at the time he entered the revolving door; therefore, he and not his employer, the defendant, furnished his means of conveyance, his legs, nor did defendant furnish the public sidewalk over which he walked to the revolving door, nor did defendant furnish the revolving door. The door was furnished by the Telephone Company -- a public service company -- for the use of the public in entering the office of that company to pay their telephone bills -- a public office. Hence, inasmuch as Jacobs was not traveling on the street nor through the revolving door -- a public door -- by permission of defendant (the employer), the doctrine of respondeat superior did not apply and defendant is not liable. Ritchey v. Western Union Telegraph Co., 227 Mo.App. 754, 41 S.W.2d 628; Phillips v. Western Union Telegraph Co., 270 Mo. 676, 195 S.W. 711. (2) The evidence conclusively shows that plaintiff and Jacobs entered the door at precisely the same instant and there was no proof that he negligently entered or moved the door. Hence, Jacobs was not negligent. Knight v. Wabash Ry., 85 S.W.2d 392; Wallingford v. Terminal Ry. Assn., 337 Mo. 1147, 88 S.W.2d 361; Ducoulombier v. Thompson, 343 Mo. 991, 124 S.W.2d 1105; Missouri Steel & Wire Co. v. Edmonds & Algier, 136 S.W.2d 118. (3) Plaintiff's Instruction 1 is erroneous and the giving thereof over the objections and exceptions of defendant constitutes reversible error in that it submits general negligence, to-wit: that Jacobs "negligently pushed and manipulated said door . . .," whereas plaintiff's petition pleads specific negligence, to-wit: that "Jacobs so carelessly and negligently pushed, shoved and manipulated said door and in a violent, forceful and sudden manner . . ." Hence, the instruction was broader than the petition and did not restrict the jury to the negligence pleaded but gave the jury a roving commission to draw its own conclusions as to how or in what manner Jacobs was negligent. Bonnarens v. Lead Belt Ry. Co., 309 Mo. 65, 273 S.W. 1043; Brainard v. Mo. Pac. Ry. Co., 319 Mo. 890, 5 S.W.2d 15; Lammert v. Wells, 321 Mo. 952, 13 S.W.2d 547; Price v. Metropolitan Street Ry. Co., 220 Mo. 435, 119 S.W. 932; Feldewerth v. Wabash Ry. Co., 181 Mo.App. 630, 164 S.W. 711; Robinson v. M.-K.-T. Ry. Co., 123 S.W.2d 624; Barber v. Kellogg, 123 S.W.2d 100; Benson v. Smith, 38 S.W.2d 749; Massman v. Kansas City Pub. Serv. Co., 119 S.W.2d 833. (4) Plaintiff's Instruction 6 is erroneous and the giving thereof over defendant's objections and exceptions constitutes reversible error in that it tells the jury that plaintiff was not guilty of contributory negligence "if you find and believe from the evidence that at and just prior to the time plaintiff's body was caught between the edge of the door . . . plaintiff was acting as you believe a person of ordinary care and prudence would have acted . . .," for the reason that said instruction is a positive misdirection because it, in effect, told the jury that even though they found that plaintiff was guilty of contributory negligence in that she stepped into a partially opened compartment, such act did not bar recovery if the jury found that she exercised ordinary reasonable care thereafter. Hence, the instruction was a misstatement of the law of contributory negligence and was in direct conflict with defendant's proper contributory negligence Instruction D. Shepherd v. St. Louis Transit Co., 189 Mo. 362, 87 S.W. 1007; Newkirk v. Tipton, 136 S.W.2d 147; Bouligny v. Metropolitan Life Ins. Co., 133 S.W.2d 1094. (5) The court erred in overruling defendant's objections and motion to discharge the jury on account of the prejudicial opening argument of plaintiff's attorney, in which he stated to the jury that he "had to limit" the amount of damages prayed for in the petition to $ 2900 "for certain reasons" and that if the jury "gave her any less it would not be dealing out justice in this case." The argument was untrue, the argument was not based on any evidence in the case, it referred the jury to the petition, it was presented as though the limitation upon plaintiff's attorney was a matter of law, that the law was unjust or that some court had decided that plaintiff was entitled to $ 2900. Hence, the argument was highly improper, poisonous and prejudicial. Hall v. Fulton Iron Works, 326 Mo. 20, 31 S.W.2d 81. The court further erred in overruling defendant's objection and motions to discharge the jury on account of the prejudicial closing argument of plaintiff's attorney. The argument was untrue, the argument was not based on any evidence in the case. Goucher v. Woodman Acc. Co., 231 Mo.App. 573, 104 S.W.2d 289; Foster v. Kurn, 133 S.W.2d 1114. (6) The court erred in permitting the $ 2900 verdict to stand, since it was grossly excessive, unwarranted and unreasonable. Ducoulombier v. Thompson, 343 Mo. 991, 124 S.W.2d 1105; Missouri Steel & Wire Co. v. Edmonds & Algier, 136 S.W.2d 118; Wallingford v. Terminal Ry. Assn., 337 Mo. 1147, 88 S.W.2d 361; Rooker v. Deering S.W. Ry. Co., 215 Mo.App. 481, 247 S.W. 1016; Adams v. Street Ry. Co., 174 Mo.App. 5, 160 S.W. 38; Smith v. Scudiero, 204 S.W. 565; Heckert v. St. Louis Hockey Club, 45 S.W.2d 869.

Charno & Drummond for respondent.

(1) The court did not err in refusing to give the instruction in the nature of a demurrer to all the evidence, and in submitting the case to the jury, because: (a) Defendant is liable for the negligence of Jacobs because at the time of the injury, Jacobs was the servant of defendant and was operating the revolving door in the furtherance of defendant's business in order to accomplish the duties entrusted to him by defendant and such act was wholly within the scope of Jacobs' employment, and the doctrine of respondeat superior applies in this case. Phillips v. Western Union Telegraph Co., 270 Mo. 676, 195 S.W. 711; Ritchey v. Western Union Telegraph Co., 227 Mo.App. 754, 41 S.W.2d 628; Callahan v. Huhlman, 339 Mo. 634; 98 S.W.2d 704; Stout v. Frick, 333 Mo. 826, 62 S.W.2d 1057; 19 C. J. 863; O'Brien v. Rindskopf, 334 Mo. 1233, 70 S.W.2d 1085; Ephland v. Mo. Pac. Ry. Co., 137 Mo. 187, 37 S.W. 820; Green v. Standard Oil Co., 190 S.W. 747; Chandler v. Gloyd, 217 Mo. 394, 116 S.W. 1073; Barnes v. Mo. Pac. Ry. Co., 192 S.W. 1040; Fellhauer v. Quincy, O. & K. C. Ry., 191 Mo.App. 137, 177 S.W. 795; Vert v. Metropolitan Life Ins. Co., 117 S.W.2d 252; Bouillon v. Laclede Gaslight Co., 148 Mo.App. 462, 129 S.W. 401; LaBella v. Southwestern Bell Telephone Co., 24 S.W.2d 1073; Todd v. Havlin, 72 Mo.App. 565, l. c. 571; Childs v. Metropolitan Life Ins. Co., 91 S.W.2d 164. (b) The contention that Jacobs cannot be negligent because plaintiff's testimony conclusively shows that she and Jacobs entered the door at precisely the same instant is not justified by the evidence. (c) Plaintiff's evidence did not show that she was guilty of contributory negligence as a matter of law. Parton v. Phillips Petroleum Co., 107 S.W.2d 167; Ross v. Mo. District Telegraph Co., 328 Mo. 1009, 43 S.W.2d 562; Howard v. Sacks, 76 S.W.2d 460; Becker v. Aschen, 344 Mo. 1107, 131 S.W.2d 533. (2) Plaintiff's Instruction I does not submit general negligence and is not erroneous, but follows both the petition and the evidence. R. S. 1939, sec. 953; Ackerman v. Green, 195 Mo. 143, 93 S.W. 255; Johnson v. Ry. Co., 247 Mo. 326, 157 S.W. 637; Davis v. Chicago & E. I. Rwy. Co., 94 S.W.2d 370; Bonnarens v. Lead Belt Ry. Co., 309 Mo. 65, 273 S.W. 1043; Hankins v. St. L.-San F. Ry. Co., 31 S.W.2d 596; Steinkamp v. Chamberlain Co., 294 S.W. 762; Faubion v. Kansas City Pub. Serv. Co., 22 S.W.2d 897; Brainard v. Mo. Pac. Ry. Co., 319 Mo. 890, 5 S.W.2d 15; Lammert v. Wells, 13 S.W.2d 547. (3) Plaintiff's Instruction 6 was not erroneous and is not subject to the charge that it constitutes misdirection, nor is it in conflict with other instructions given in the case. Larey v. M.-K.-T. Ry. Co., 333 Mo. 949, 64 S.W.2d 681. (4) The court did not commit reversible error in overruling defendant's objections and motions to discharge the jury on account of arguments of plaintiff's attorneys, because the arguments were not prejudicial and the objections made to the arguments were not sufficient to preserve the alleged errors for review. Propst v. Capital Mutual Assn., 124 S.W.2d 515; Leingang v. Geller, 335 Mo. 549, 73 S.W.2d 256; Randol v. Kline's, Inc., 330 Mo. 343, 49 S.W.2d 112; Monpleasure v. Amer. Car & Foundry Co., 293 S.W. 84; Kamer v. M.-K.-T. Ry. Co., 326 Mo. 792, 32 S.W.2d 1075; Carroll v. Mo. P. & L. Co., 96 S.W.2d 1074. (5) The court did not err in permitting the verdict of $ 2900 to stand, it not being excessive, but reasonable and warranted by the evidence. Caldwell v. Eubanks, 326 Mo. 185, 31 S.W.2d 976; Monarch Vinegar Works v. Chicago, B. & Q. Ry. Co., 285 Mo. 537, 226 S.W. 546; State ex rel. Bowling Green Trust Co. v. Barnett, 245 Mo. 99, 149 S.W. 311; Sicher v. Rambousek, 193 Mo. 113, 91 S.W. 681; Britt v. Crebo, 293 Mo. 447, 199 S.W. 154; McCollum v. Winwood Amusement Co., 332 Mo. 779, 59 S.W.2d 693; Muesenfechter v. St. Louis Car Co., 139 S.W.2d 1102; Webb v. M.-K.-T. Ry. Co., 342 Mo. 394, 116 S.W.2d 27; Baker v. Chicago, B. & Q. Ry. Co., 329 Mo. 986, 39 S.W.2d 535; Hoover v. Ry. Co., 227 S.W. 77.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

Action for personal injuries received in a revolving door. At a jury...