Spina v. Union Biscuit Co.

• Decision Date: 02 June 1925
• Docket Number: No. 18950.,18950.
• Parties: SPINA v. UNION BISCUIT CO.
• Court: Missouri Court of Appeals

273 S.W. 428

SPINA v. UNION BISCUIT CO.

No. 18950.

St. Louis Court of Appeals. Missouri.

June 2, 1925.

Rehearing Denied June 24, 1925.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be officially published."

Action by Maria Spina against the Union Biscuit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Wilfley, Williams, McIntyre & Nelson and Wendell Berry, all of St. Louis, for appellant.

Lich & Miller, of St. Louis, for respondent.

NIPPER, J.

This is an action for damages for personal injuries sustained by plaintiff, and due to the alleged negligence of defendant. Plaintiff recovered judgment, and defendant appeals.

In the petition, there were three assignments of negligence: First, that defendant failed to exercise reasonable care to furnish plaintiff with a reasonably safe place in which to work, and to keep the same in a reasonably safe condition, in that defendant permitted the floor over which plaintiff was obliged to walk to become wet, sloppy, and slippery; second, that defendant was careless and negligent in ordering plaintiff to cross a floor when it was in a wet, sloppy, and slippery condition; and, third, that defendant was careless and negligent in causing and permitting said floor to be scrubbed during regular working hours, because the scrubbing thereof made the floor wet, sloppy, and slippery, and dangerous to walk over.

The evidence discloses that plaintiff was 49 years of age, and an employé of defendant. She had been working for defendant one week prior to the date of her injuries. Her work consisted of sticking icing on cakes, and while so engaged she stood at a trolley which carried the cakes past where she was standing. The place where plaintiff worked was a large room, and some 200 or 300 people were engaged in work therein. Plaintiff was injured some 25 or 30 feet away from the point where she worked. During working hours at this place, due to the character of work which was being performed, marshmallow would fall upon the floor, and every day, about an hour prior to quitting time, defendant would clean up the floor, by removing this marshmallow and other material which would fall thereon, by scrubbing and mopping the floor with water. Plaintiff was injured about 11:50 a. m. on a Saturday, and a short time after some of the employés of defendant had begun the work of washing and cleaning up the floors. She was directed by her foreman to proceed to another point in the room where a sink was located, and wash a pan. After she had washed the pan and started to return to her place of work, she slipped and fell at a point where the water had been placed on the floor for the purpose of mopping and scrubbing it to remove the marshmallow. When the water was placed upon the floor, and came in contact with the marshmallow that happened to be lying about, it become slick, and made the floor dangerous to walk upon. The floor at the point where plaintiff was working at the trolley was dry, but in going to the sink and returning therefrom she had to cross this wet spot.

The evidence on the part of defendant discloses that it is engaged in the manufacture of food products such as cakes and crackers; that a portion of the materials used in the manufacture of such products will fall Or be spilled upon the floor during working hours, and that at various times during working hours and before quitting time certain employés of defendant scrub or clean up the floor, and that employés who drop cakes or icing upon the floor clean it up at once, without waiting until the regular cleaning-up time near the close of the working day. The evidence discloses also that the work of cleaning up the floor could have been done just as well after closing hours as before.

At the close of the plaintiff's case, and again at the close of the whole case, defendant requested an instruction in the nature of a demurrer to the evidence. These instructions were not specific, but general, in their nature. After the court had overruled same, defendant did not ask for any specific withdrawal instruction as to any assignment of negligence in the petition, but requested, and the court gave in its behalf, six instructions. Instruction No. 2, given at the request of defendant, submitted to the jury the question of whether or not defendant was negligent in using the method it did use in keeping said floor clean.

Plaintiff requested, and the court gave in her behalf, only one instruction, and that was on the measure of damages.

The errors assigned by defendant on this appeal are that the court should have sustained its demurrers to the evidence, and that there was error in the court's refusal to give a certain instruction requested by it. It is defendant's contention that it owed the duty to its employés of cleaning its floor, and that it was only performing the duty required of it at the time plaintiff received her injury, and cites and relies upon such cases as Reese v. Loose-Wiles Biscuit Co. (Mo. App.) 224 S. W. 63, Milzark v. National Biscuit Co. (Mo. App.) 259 S. W. 832, and Soltesz v. J. H. Belz Provision Co. (Mo. Sup.) 260 S. W. 990, to support its contention that it was performing such duty as the law required it to perform, and was therefore guilty of no negligence.

The plaintiff meets this contention of defendant by arguing: First, that defendant could have done the work of cleaning the floor better after working hours, and in that way it would have been unnecessary tocre-ate the dangerous condition which was created by using the water upon this marshmallow while employés were at work; and, second, that defendant is in no position to contend that there was no case made for the jury, because, after its general demurrer was overruled, it requested no specific withdrawal instructions, but requested an instruction which the court gave, submitting the issues to the jury upon the merits. It is apparent that this last contention of plaintiff is correct, and is a proper pronouncement of the law as applicable to such a state of facts as we have in this case. This court and the Supreme Court have so held in a number of cases. This court reviewed the law with respect to this proposition in the case of Ramsey v. M. R. & B. T. Ry., 253 S. W. 1079. That case went to the Supreme Court on a writ of certiorari, and that court has just recently held (272 S. W. 925), in an opinion not yet [officially] published, that the Ramsey Case was in accordance with the past pronouncement of the Supreme Court on that proposition, as found in the case of Torrance T. Pryor, 210 S. W. 430.

In the instant case there were three assignments of negligence in the petition. The demurrers offered by defendant were general in their nature, and not directed to any specific assignment. After such were overruled, the defendant took no further action with respect to having any particular assignment of negligence withdrawn, but requested and was given an instruction submitting its theory of the case to the jury. It is now in no position to complain of the court's action in refusing to give its peremptory instruction in the nature of a demurrer, which it requested at the close of the plaintiff's case and at the close of the whole case. Among other cases upholding this doctrine are Bruns v. United Rys. Co. (Mo. App.) 251 S. W. 760, Leahy v. Winkel (Mo. App.) 251 S. W. 483, and Davison v. Hines (Mo. Sup.) 246 S. W. 295.

A further contention is made by defendant that the court erred in refusing to give its instruction B. This instruction is as follows:

"The court instructs the jury that they cannot find a verdict for the plaintiff on the sole ground that the floor was wet, sloppy, or slippery."

The refusal to give this instruction, however, would not constitute reversible error under the facts of this case, because defendant secured an instruction which told the jury that, if the floor was not in a wet, sloppy, or slippery condition, then the verdict should be for the defendant; and in its instruction No. 2 the jury were fully informed as to every defense which defendant might reasonably invoke.

Instruction No. 3 also covered another theory of the defense to this cause of action. Even if instruction B was In the correct form, we think the elements of defense were fully covered by other instructions given.

In this state of the record, there is no reversible error, and the judgment should be and is affirmed.

Appeal from St. Louis Circuit Court; Wm. H. Killoren, Judge.

"Not to be officially published."

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