Sanguinett v. May Dept. Stores Co. et al.
| Decision Date | 05 December 1933 |
| Docket Number | No. 22624.,22624. |
| Citation | 65 S.W.2d 162 |
| Court | Missouri Court of Appeals |
| Parties | BETTY SANGUINETT, RESPONDENT, v. MAY DEPARTMENT STORES COMPANY, A CORPORATION, AND BESSIE HARRIS, APPELLANTS. |
Appeal from the Circuit Court of the City of St. Louis. — Hon. Arthur H. Bader, Judge.
AFFIRMED.
Joseph N. Hassett and Ernest E. Baker for appellants.
(1) Plaintiff's action in staggering toward her seat, after leaving the witness stand, having shown no signs of distress or nervousness while on the witness stand, was such that it influenced and prejudiced the jury against defendants and it was error to refuse the defendants' motion to discharge the jury. Stutz v. Milligan, 223 S.W. 128; Ullom v. Griffith, 263 S.W. 876. (2) The court's action in withdrawing forms of verdict from the jury after it had deliberated one hour fifty-five minutes without reaching a verdict was reversible error because it coerced the jury into believing that the court thought plaintiff was entitled to a verdict against both defendants. McPeak v. Mo. Pac., 128 Mo. 617. (3) Under the law in this case the jury were entitled to find facts from the evidence justifying a verdict against one defendant and in favor of the other. It was prejudicial and reversible error to withdraw the two forms of verdict from the jury. Canfield v. C.R.I. & P. Ry., 59 Mo. App. 354; Hamm v. C.B. & Q. Ry., 254 S.W. 1109; McMahon v. C.B. & Q. Ry., 277 S.W. 356. (4) It was reversible error to allow Dr. Gallagher to answer leading and suggestive questions as to his opinion based upon facts by Dr. McFadden, or on Dr. McFadden's opinion. Livery Co. v. Railroad, 105 Mo. 560; Fingley v. Cowgill, 48 Mo. 291; Gravey v. Railroad, 157 Mo. 666; Aronwitz v. Arky, 219 S.W. 620; Gregory v. Chambers, 78 Mo. 294. (5) Witness Dr. Gallagher did not qualify as an expert witness on nervous ailments. It was reversible error to permit him to testify as to his opinion concerning these ailments, especially when he had referred patient to a neurologist. Lorts v. Wash, 175 Mo. 487. (6) Plaintiff's Instruction No. 1 submits to the jury the issue of defendants' negligence in failing to discover plaintiff while boarding the elevator in question. There was no evidence of such failure and no such inference can be drawn from the evidence. This instruction constituted reversible error. Lord v. Delano, 188 S.W. 93; Baker v. McMurry Cont. Co., 223 S.W. 45. (7) Plaintiff's Instruction No. 1 required the jury to find that defendants negligently failed to discover plaintiff entering the elevator in question and this fact could not be found from the evidence. The instruction constituted the law of the case and was binding on the jury and the jury's verdict contrary to the terms of this instruction constituted reversible error. Barber v. McDonald, 245 S.W. 357.
Mark D. Eagleton, Dan P. Reardon, Frank L. Ramacciotti and Frank P. Aschemeyer for respondent.
(1) It was peculiarly the province of the trial court to determine whether the conduct of plaintiff in staggering as she neared her seat in the court room, or that of her son in assisting her in leaving the court room, was such as to influence or prejudice the jury. This court must defer to the discretion of the trial court, unless it is manifest from the record that such discretion has been clearly abused. Moll v. Pollack, 319 Mo. 744, 8 S.W. (2d) 38; Lewis v. Illinois Cent. R. Co., 50 S.W. (2d) 122; Ullom v. Griffith, 263 S.W. 876. (2) The action of the court in withdrawing certain forms of verdict from the jury was manifestly correct because: There was no evidence to justify a verdict against May Department Stores Company alone, and the jury could not be permitted to base a verdict against such company upon speculation, guess or conjecture. Kane v. Mo. Pac. R.R. Co., 251 Mo. 13; Hamilton, Adm., v. St. L.-S.F. Ry. Co., 318 Mo. 123; Thompson v. City of Lamar, 17 S.W. (2d) 960. (3) Under the pleadings and the evidence, plaintiff's right to recover against May Department Stores Company is predicated solely upon the doctrine of respondeat superior, because of the misfeasance of its employee, Harris, and a verdict against May Department Stores Company alone would have been self-destructive and a nullity since, if the employee, Harris, was found free of negligence, no liability could attach to the employer, May Department Stores Company. McGinnis v. Chicago, R.I. & P. Ry. Co., 200 Mo. 347, 98 S.W. 590; Lindman v. Kansas City, 308 Mo. 161, 271 S.W. 516; Michely v. Mississippi Valley Structural Steel Co., 299 S.W. 830. (4) The testimony of Dr. Gallagher is based upon his examinations and treatment of plaintiff. The question propounded to him (Rec., p. 28) is not leading and suggestive, but, in any event, it was within the court's discretion to permit a leading and suggestive question, and the court's action in that connection would not constitute reversible error. 28 R.C.L., sec. 183, pp. 591-92; Godfrey v. Kansas City Light & Power Co., 299 Mo. 472, 253 S.W. 233; Costello v. Kansas City, 280 Mo. 576, 219 S.W. 386; Cunningham v. Doe Run Lead Co., 26 S.W. (2d) 957; State v. Comer, 296 Mo. 1, 247 S.W. 179. (5) Dr. Gallagher was manifestly qualified, by reason of his professional training and experience, to express an opinion as to plaintiff's condition based upon his examinations and treatment of her. Seckinger v. Philibert & Johanning Mfg. Co., 129 Mo. 590; Spaulding v. Edina, 122 Mo. App. 65. (6) Plaintiff's Instruction No. 1 is correct and was properly given. The instruction is drawn in the conjunctive and requires the jury to find defendants guilty of negligence not only in failing to discover plaintiff, but also in closing the door while plaintiff was in the act of getting on the elevator and in failing to warn plaintiff that the doors were about to be closed. If the evidence is sufficient to support a verdict on any of these hypotheses of liability, the inclusion of the others would be mere surplusage and not error. Houston v. American Car & Foundry Co., 282 S.W. 170; Webster v. International Shoe Co., 18 S.W. (2d) 131; Trautman v. East St. Louis Cotton Oil Co., 224 S.W. 1014; State ex rel. Pevely Dairy Co. v. Daues, 289 S.W. 835.
This is a suit for damages for personal injuries alleged to have been sustained by respondent (plaintiff) when she was about to board an elevator in a department store in the City of St. Louis, Missouri. May Department Stores Company, appellant (defendant), owned the store, and Bessie Harris, appellant (defendant), was its employee in charge of the elevator. A trial before the court and a jury resulted in a verdict and judgment for plaintiff and against both defendants in the sum of $5,000. Defendants bring the case to this court by appeal.
Plaintiff's petition alleged that defendant May Department Stores Company owned and operated a large retail merchandise store in the City of St. Louis, wherein it invited the general public to come and transact business with it; that on the 24th of October, 1929, pursuant to said invitation, plaintiff was on the ninth floor of said store, and that said defendant's elevator stopped on that floor to permit persons to alight from and get on said elevator; that plaintiff was waiting to become a passenger on said elevator which was then and there operated by defendant Bessie Harris, employee of defendant May Department Stores Company.
The petition alleged that the elevator was equipped with a collapsible steel or iron door, and that there was another steel or iron door leading into the elevator shaft; that when the elevator stopped to take on or discharge passengers it became necessary to open both of said doors; that on the occasion mentioned, while said elevator was stopped on the ninth floor, and while the exit door thereto was open to permit persons to board and alight therefrom, plaintiff attempted to board and enter said elevator as a passenger, and while she was in the act of passing from the ninth floor through the door of said elevator, the doors of said elevator closed with great force and violence, striking and injuring her.
The petition alleged that plaintiff's injuries directly and proximately resulted from the negligence and carelessness of defendants in the following respects:
1. In negligenly suffering and permitting the elevator doors to be closed and to strike plaintiff while she was getting into and on said elevator.
2. Negligent failure to allow plaintiff sufficient time to get into and upon the elevator before closing the doors.
3. Failure to exercise ordinary care to discover that plaintiff was in the act of getting on the elevator before closing the doors.
4. Negligent failure to warn plaintiff that the doors of the elevator were likely to be closed.
5. An assignment of negligence based upon the humanitarian doctrine.
Each of the defendants filed a general denial.
No complaint is made that the evidence was insufficient to warrant the submission of the case to the jury. It will, therefore, be unnecessary to set forth at length the evidence adduced at the trial. As we proceed, we shall refer to such portions of the evidence as may be found necessary to a proper consideration of the errors complained of.
During the trial plaintiff was called as a witness and gave testimony with respect to her injuries, after which she was withdrawn and Dr. McFadden, a witness for plaintiff, was called to the witness stand. Immediately after plaintiff left the witness stand and had arrived at a point within a few feet of her seat outside the rail in the court room, she began to stagger and stumble, whereupon, her son arose and assisted her out of the court room. Immediately thereafter Mr. Ramacciotti, of counsel for plaintiff, who was sitting in the trial, left the court room, whereupon, Mr. Reardon, plaintiff's counsel who was conducting plaintiff's case, becoming aware of the absence of his client and...
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