Scheele v. American Bakeries Co.
| Decision Date | 08 April 1968 |
| Docket Number | No. 2,No. 53028,53028,2 |
| Parties | Elizabeth SCHEELE and Arthur Scheele, Plaintiffs-Appellants, v. AMERICAN BAKERIES COMPANY, a Corporation, and Anthony R. Ganss, Defendants-Respondents |
| Court | Missouri Supreme Court |
Stewart & Bruntrager, Joseph G. Stewart, St. Louis, for appellants.
W. Munro Roberts, Jr., Heneghan & Roberts, St. Louis, for respondent, American Bakeries Co.; John B. Gray, Clayton, for respondent, Anthony R. Ganss.
This is an action brought against American Bakeries Company, Anthony R. Ganss and Bettendorf-Rapp, Inc. The petition is in two counts. Count I sought damages of $50,000 on behalf of Elizabeth Scheele for personal injuries and in Count II, Arthur Scheele sought damages of $7,500.00 for injuries to his wife. At the close of plaintiffs' case, the plaintiffs voluntarily dismissed as to defendant Bettendorf-Rapp, Inc. At the time of the submission of the case to the jury there were two defendants left, Ganss, the employee, and American Bakeries, the employer. The question of agency is not in this case as defendant American Bakeries admitted in its answer that at the time and place alleged in plaintiffs' petition, the defendant Ganss was their employee pushing the bread truck. Plaintiffs have appealed from a verdict and judgment for defendants.
In their appeal the plaintiffs are contending that the Trial Court erred in giving Instructions number 4 and 5, each conversing the same single element of verdict-directing Instruction number 3 and in giving Instructions number 8 and 9, each conversing the same single element of verdict-directing Instruction number 7. Plaintiffs' Instruction number 3, given at the request of Elizabeth Scheele, is as follows:
INSTRUCTION NUMBER 3
'Your verdict must be for Plaintiff Bessie Scheele and against defendants, American Bakeries Company and Anthony Ganss, if you believe:
First, Anthony Ganss knew, or in the exercise of ordinary care, should have known of the presence of Plaintiff Bessie Scheele, and
Second, Anthony Ganss pushed the bread truck so as to strike Plaintiff Bessie Scheele, and
Third, Anthony Ganss was thereby negligent, and
Fourth, as a direct result of such negligence, Plaintiff sustained damage.'
At the request of defendants, the Court gave Instructions number 4 and 5 in defense of Elizabeth Scheele's claim which follow:
INSTRUCTION NUMBER 4
'Your verdict must be for Defendant American Bakeries Compay on Plaintiff Bessie Scheele's claim for damages unless you believe that Defendant Anthony Ganss pushed the bread truck so as to strike Plaintiff Bessie Scheele.'
'Your verdict must be for Defendant Anthony Ganss on Plaintiff Bessie Scheele's claim for damages unless you believe that Defendant Anthony Ganss pushed the bread truck so as to strike Plaintiff Bessie Scheele.'
Plaintiffs' Instruction number 7, given at the request of Arthur Scheele, is as follows:
INSTRUCTION NUMBER 7
'Your verdict must be for Plaintiff Arthur Scheele and against defendants, American Bakeries Company and Anthony Ganss, if you believe:
First, Anthony Ganss knew, or in the exercise of ordinary care should have known, of the presence of Plaintiff Bessie Scheele, and
Second, Anthony Ganss pushed the bread truck so as to strike Plaintiff Bessie Scheele, and
Third, Anthony Ganss was thereby negligent, and
Fourth, as a direct result of such negligence, Plaintiff Arthur Scheele's wife Bessie was injured and Plaintiff thereby sustained injury.'
At the request of the defendants, the Court gave Instructions number 8 and 9 in defense of Arthur Scheele's claim which follow:
INSTRUCTION NUMBER 8
'Your verdict must be for Defendant American Bakeries Company on Plaintiff Arthur Scheele's claim for damages unless you believe that Defendant Anthony Ganss pushed the bread truck so as to strike Plaintiff Bessie Scheele.'
'Your verdict must be for Defendant Anthony Ganss on Plaintiff Arthur Scheele's claim for damages unless you believe that Defendant Anthony Ganss pushed the bread truck so as to strike Plaintiff Bessie Scheele.'
Instructions number 4 and 5 both converse Instruction number 3 and Instructions number 8 and 9 both converse Instruction number 7, and the result is that two verdict-directing instructions were given on behalf of plaintiffs, one each of Count I and Count II and four converse instructions were given on behalf of the defendants. The jury, as directed in this case in Instructions number 3 and 7, could not return separate verdicts as to each defendant and could only find against both or neither of them.
Plaintiffs in prosecuting this appeal rely on the recent rulings of this Court in Nugent v. Hamilton & Son, Inc., Mo., 417 S.W.2d 939, and Murphy v. Land, Mo., 420 S.W.2d 505. The defendants urge that the rulings in the case of Murphy v. Land, supra, do not apply here for the reason that there was only one defendant in that case. We do not agree with the defendants' position in this regard since we cannot overlook the fact that there was no issue of agency in the present case. This Court held in Murphy v. Land, supra, wherein defendant gave two converse instructions in response to plaintiff's verdict-directing instructions submitting a single theory of recovery that the giving of two converse instructions was a violation of M.A.I. 29.01 and constituted error. In the case of Nugent v. Hamilton & Son, Inc., supra, the giving of more than one converse instruction in response to one plaintiff verdict-directing instruction was held to be error. In that case, there was an employee and employer relationship, both being the defendants as in the present case, and the question of agency was not submitted to the jury, just as was the situation here. Defendants rely on the general comment on converse instructions appearing at page 245 M.A.I. 29.01, 'A defendant is entitled to a converse of plaintiffs' verdictdirecting instruction,' citing Frazier v. Ford Motor Co., 365 Mo. 62, 276 S.W.2d 95. The opinion in the Frazier case holds, 276 S.W.2d l.c. 102, 'In approving a defendant's submission converse to a plaintiff's verdict directing instruction in civil cases, we have said that the defendant is entitled to a proper converse instruction.' The quotation really says 'the' defendant rather than 'a' defendant. In any event, the first paragraph on page 245 does not mean that every defendant is entitled to a separate converse instruction of a plaintiff's verdict-direction instruction even though, as here, the basis of submission is joint liability.
Defendants further urge that they did not deviate from the straight and narrow path of M.A.I. so as to incur the burden of establishing nonprejudice and the plaintiffs herein have failed to sustain the burden of showing prejudicial error in the giving of said instructions. In ruling on his point, we must hold that it is the defendants' burden to prove that their instructions were not prejudicial and defendants cannot avoid this burden as was held in Murphy v. Land, supra, 420 S.W.2d l.c. 507, Defendants, proponents of the instructions, have not established that no prejudice resulted from the giving of the multiple converse instructions. We hold that the giving of two converse instructions to each of plaintiffs' verdict-directing instructions was a violation of M.A.I. and was prejudicially erroneous.
Defendants contend that any error in the instructions given at the request of either defendant would be harmless for the reason that plaintiffs did not make a submissible case for the jury and their separate motions for a directed verdict should have been sustained. It is a well-established rule in our Appellate Courts that in determining whether a plaintiff has made out a factual issue for consideration by a jury we must view the evidence in the light most favorable to the plaintiff, giving plaintiff the benefit of all legitimate inferences to be drawn therefrom. Cech v. Mallinckrodt Chemical Co., 323 Mo. 601, 20 S.W.2d 509; Osterhaus v. Gladstone Hotel Corp., Mo., 344 S.W.2d 91. This requires that we review the evidence in the case.
Plaintiff Elizabeth Scheele, who was 77 years old, claims that she was injured while shopping in Bettendorf's Super Market when her left foot was struck by a bread rack or truck being pushed down the aisle and through the store by defendant Anthony Ganss. The store had opened at 8:00 A.M. on the morning in question and the accident occurred at about 8:30 A.M. The plaintiff, at the time of the accident, was standing at the meat counter facing the butcher who was cleaning off a butcher block, and she was waiting for him to finish this job before waiting on her. She had her pocketbook under her left arm and a customer's number in her right hand. At the time in question defendant Ganss was delivering bread into the store and was pushing the bread truck down the aisle in back of and to the rear of the plaintiff. Plaintiff did not see the bread truck before she was struck as she was facing the meat counter and the truck was in back of her. Her first knowledge of the presence of the bread truck was when her left foot was struck from the rear causing her to fall. At the time her left foot was struck she was caused to be turned and twisted around, and her back and shoulders hit the glass of the butcher counter causing her to slip down on the floor. Immediately after she fell and was twisted around, she saw the bread truck and the defendant Ganss right in front of her. This bread truck is described by defendant Ganss as follows: It has four...
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