Skelton v. General Candy Co., 36912

• Citation: 539 S.W.2d 605
• Decision Date: 15 June 1976
• Docket Number: No. 36912,36912
• Parties: Margaret SKELTON, Plaintiff, v. GENERAL CANDY COMPANY, Defendant. . Louis District, Division Three
• Court: Court of Appeal of Missouri (US)

Page 605

539 S.W.2d 605

Margaret SKELTON, Plaintiff, v. GENERAL CANDY COMPANY, Defendant.

No. 36912.

Missouri Court of Appeals, St. Louis District, Division Three.

June 15, 1976.

Motion for Rehearing or Transfer Denied July 9, 1976.

Application to Transfer Denied Sept. 13, 1976.

Armstrong, Teasdale, Kramer & Vaughan, John J. Cole, Larry B. Luber, St. Louis, for defendant.

James F. Koester, David G. Dempsey, Shifrin, Treiman, Bamburg & Dempsey, St. Louis, for plaintiff.

GUNN, Judge.

Plaintiff-respondent fell on defendant-appellant's parking lot. The jury awarded plaintiff $15,000 for injuries sustained as a result of the fall, and defendant has appealed. On appeal, defendant suggests four points of alleged trial error: 1) that the plaintiff's verdict directing instruction embraced two theories of recovery, neither of which was supported by the evidence; 2) that plaintiff was permitted to amend her petition at the close of plaintiff's evidence to advance a new theory of liability; 3) that testimony of plaintiff's expert witness concerning the condition of defendant's parking lot was improper; 4) that plaintiff was permitted to present evidence of specific damages not pleaded. We find no reversible error and affirm the judgment.

Plaintiff was 78 years old at the time of her injury. On the date of her accident, plaintiff had been driven to defendant's place of business in St. Louis by her granddaughter to pick up some supplies for her daughter's sandwich shop. Plaintiff had frequently performed this errand at defendant's store and was familiar with the parking lot. After plaintiff had placed the order for supplies she returned to her granddaughter's automobile on defendant's parking lot, and as she was opening the automobile door, she stepped in a hole and fell on her hip causing a fracture necessitating surgery and the insertion of a prosthesis.

Defendant does not dispute the injury to plaintiff or that she did fall on its parking lot. Defendant concentrates its attack on plaintiff's testimony as to the precise location of plaintiff's fall and contends that there was insufficient evidence to establish that plaintiff fell in a hole on an incline in defendant's parking lot. Plaintiff testified that she stepped in a hole in defendant's parking lot and fell; that the hole was on an incline. Defendant argues that there was but a single incline on the parking lot and that according to the photographic exhibits, no hole appears on that incline. But defendant overlooks the fact that the evidence firmly establishes that there were two inclines on the parking lot--albeit one was substantially smaller than the other--and the smallest incline contained a hole in the asphalt. While plaintiff's testimony appears at times to be confused and confusing, giving effect to the judicial aphorism that the evidence is to be viewed in the light most favorable to the verdict, ¹ a jury could find that the plaintiff could have fallen by reason of a hole in the asphalt in the smaller incline of the parking lot. The defendant concedes that there was a hole on the parking lot but argues that it was a substantial distance from the larger incline and suggests that the evidence clearly places the plaintiff on the large incline at the time of her fall. Thus, defendant concludes that the plaintiff could not have fallen in a hole. But there is evidence from the plaintiff and her granddaughter from which a jury could find that plaintiff fell in a hole on the small incline.

Having thus determined that there is sufficient evidence to establish that plaintiff fell in a hole in an incline (the small incline), we tackle defendant's first point of alleged error: that plaintiff's verdict directing instruction submitted dual theories of recovery in the conjunctive. Plaintiff's verdict director reads:

'Your verdict must be for the plaintiff if you believe:

First, that defendant's parking lot had a hole in the asphalt and was on an incline and as a result the parking lot was not reasonably safe for customers, and

Second, plaintiff did not know of and by using ordinary care could not have known of this condition, and

Third, defendant knew or by using ordinary care could have known of this condition, and

Fourth, defendant failed to use ordinary care to repair it, and

Fifth, as a direct result of such failure, plaintiff was injured.'

Defendant complains that paragraph First of the instruction submits dual theories of recovery based on alleged negligence of a hole in the driveway and negligence due to maintaining an incline. ² Of course, the practice of submitting dual theories of recovery in the conjunctive is prohibited by MAI 1.02. But defendant's dual theory issue has not been preserved for appellate review, as it was not presented to the trial court in the motion for new trial.

The Supreme Court rules clearly set forth the procedure for preserving error for appellate review. When a specific objection to an instruction is made during the trial, it is sufficient to make a general statement in the motion for new trial of any allegations of error based thereon, but if no specific objection is made at trial, the motion for new trial must contain the specific objection. Rules 70.02; 78.07.

'The intent is that both the trial court and the appellate court may know specifically what the objections are, and that the appellate court may know that they have been presented to the trial court.' Ayres v. Keith, 355 S.W.2d 914, 917 (Mo.1962).

The allegations of error made to the trial court must be 'sufficiently definite to direct the court's attention to the particular acts or rulings asserted to be erroneous.' Pasley v. Newton, 455 S.W.2d 43, 47 (Mo.App.1970). The purpose of these rules is to give the trial judge one last opportunity to correct his errors without the delay, expenses or hardships of an appeal. Safe-Buy Real Estate Agency v. Hemphill, 498 S.W.2d 599 (Mo.App.1973); Pasley v. Newton, supra.

The defense did make what could be construed as a specific objection to plaintiff's verdict director when it was first presented:

Defendant's counsel: 'Well, , i want to state on the record that I object to the new theory that plaintiff has injected in here, which would permit the jury to find against the defendant if they find that there was a hole in the parking lot, even in the driveway where the plaintiff had positioned it. And, also, that the parking lot was on an incline. I think that his claim that it is a basis of negligence that the parking lot was on an incline is a separate, distinct and new theory of negligence which we are not prepared for, and I claim surprise; and I would ask the Court to eliminate that theory from the verdict directing instruction.

'The Court: Well, it is the Court's understanding of that instruction, which is No. 3, that there was a hole in the asphalt and that it was on an incline and that the hole being in a point where the parking lot was inclined was merely an addition that made it not reasonably safe for customers. I don't construe the instruction as finding that the mere fact that the parking lot is on an incline is a dangerous condition.'

We note that the foregoing objection does not precisely designate that the instruction encompasses dual theories--the objection seems to go to the injection of a 'new' theory. In any event, even if we were to accept the objection as being specifically directed at dual theories submission, the defendant's motion for new trial is devoid of objection or reference, either specific or general, that the instruction contained dual theories. ³ Hence, we find that the defendant cannot argue the dual theory issue on appeal, for the trial judge was not given opportunity to consider that issue at the time of the motion for new trial.

Defendant also argues that the plaintiff was improperly permitted to amend her petition at the close of plaintiff's evidence to allege negligence by defendant by reason of a hole on an incline in the asphalt on the parking lot. Plaintiff's initial petition alleged that plaintiff's fall occurred when she stepped on 'cracked and uneven pavement' which defendant had allowed to develop in its parking lot. During the cross-examination of plaintiff, defendant's counsel sought to elicit from her that the cause of plaintiff's fall was a steep incline on the parking lot rather than a hole in the parking lot. During the cross-examination plaintiff identified the hole in which she fell as being on an incline. ⁴ Thereafter plaintiff sought and was granted leave to amend her petition to charge that the defendant had negligently permitted a hole to form in its parking lot, failed to repair the hole and that the hole was located on an incline. We believe that the amendment conformed with the evidence presented. Inasmuch as it was defendant's examination of plaintiff that established that plaintiff had fallen in a hole on an incline, the pleading, without formal amendment, should have been treated as if amended to conform to the evidence and issues raised by the implied consent of the parties. Section 509.500 RSMo 1969; Rule 55.33(b); Middleman v. Complete Auto Transit, Inc., 486 S.W.2d 456 (Mo. banc 1972). Consequently, the trial court did not err in allowing the formal amendment. Furthermore, the decision whether to grant leave to amend pleadings is within the sound discretion of the trial court. Boling v. State Farm Mutual Automobile Ins. Co., 466 S.W.2d 696 (Mo.1971); S. v. W., 514 S.W.2d 848 (Mo.App.1974), and since we believe that the amendment conforms with the evidence, we find no abuse of the trial court's discretion in permitting the amendment to plaintiff's petition.

Defendant also insists that the amendment enlarged the issues, and the exercise of sound discretion require that there be provision for adequate protection of the rights of the defendant, such as allowing a continuance to allow time for preparation to meet the issues. Such argument is without merit...