State ex rel. Golloday v. Shain

• Citation: 110 S.W.2d 719,341 Mo. 889
• Parties: State of Missouri at the relation of H. L. Golloday and the Fox Ozark Theatre Company, a Corporation, Relators, v. Hopkins B. Shain, Ewing C. Bland and Robert M. Reynolds, as Judges of the Kansas City Court of Appeals
• Decision Date: 09 December 1937
• Court: United States State Supreme Court of Missouri

110 S.W.2d 719

341 Mo. 889

State of Missouri at the relation of H. L. Golloday and the Fox Ozark Theatre Company, a Corporation, Relators, v. Hopkins B. Shain, Ewing C. Bland and Robert M. Reynolds, as Judges of the Kansas City Court of Appeals

Supreme Court of Missouri

December 9, 1937

Record and opinion quashed.

Hunter & Chamier for relators.

(1) The opinions and judgment of the Kansas City Court of Appeals should be quashed, because in holding under the facts stated in its opinions, that defendants' demurrers to the evidence should have been overruled, such opinions are in conflict with prior controlling decisions of the Supreme Court under a similar state of facts. Ilgenfritz v. Mo P. & L. Co., 101 S.W.2d 723; Mullen v. Sensenbrenner Merc. Co., 260 S.W. 982; Paubel v. Hitz, 96 S.W.2d 369; Main v. Lehman, 294 Mo. 579, 243 S.W 91; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278; Cash v. Sonken-Galamba Co., 322 Mo. 349, 17 S.W.2d 927; Stein v. Battenfield Oil & Grease Co., 327 Mo 804, 39 S.W.2d 345. (2) The opinions and judgment of the Kansas City Court of Appeals should be quashed, because the Court of Appeals, in holding that defendants' demurrers to the evidence should have been overruled, announced general principles of law in conflict with prior controlling decisions and announcements of the Supreme Court, on the subject. Ilgenfritz v. Mo. P. & L. Co., 101 S.W.2d 723; Mullen v. Sensenbrenner Merc. Co., 260 S.W 982; Paubel v. Hitz, 96 S.W.2d 369; Main v Lehman, 294 Mo. 579, 243 S.W. 91; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278; Cash v. Sonken-Galamba Co., 322 Mo. 349, 17 S.W.2d 927; Stein v. Battenfield Oil & Grease Co., 327 Mo. 804, 39 S.W.2d 345.

Frank, J. All concur, except Hays, J., absent.

OPINION

FRANK

Certiorari to quash an opinion of the Kansas City Court of Appeals in the case of Dollie Myers v. H. L. Golloday and the Fox Theatre Company, a Corporation. In that case plaintiff recovered a judgment of $ 4000 for personal injuries alleged to have been caused by a fall on a waxed floor in the lobby of defendants' theater located in Brookfield, Missouri. This proceeding was brought to quash the opinion of the Court of Appeals affirming that judgment.

At the trial of the Dolly Myers case in the circuit court defendants' demurrer to the evidence was overruled. That ruling was affirmed by the Court of Appeals. Relator contends that such ruling is in conflict with the ruling of this court on a similar state of facts in the case of Ilgenfritz v. Missouri Power & Light Company, 340 Mo. 648, 101 S.W.2d 973. That part of the opinion of the Court of Appeals pertinent to this question follows:

"It is true that a verdict based upon mere guess, conjecture, supposition, and speculation cannot stand and that a verdict, to stand, must be based upon competent, substantial evidence. The authorities cited in their brief by defendants under this complaint fully sustain such proposition. It is unnecessary to review them. However, we cannot agree with defendants in their contention that plaintiff's evidence directed to a showing of the condition of the floor at the time plaintiff fell thereon, as being slick and unsafe and dangerous to walk on by reason of wax, oil, or other substance negligently placed thereon by defendants, was based on mere conclusions, speculations, conjectures, and suppositions of witnesses. We do not think that plaintiff's evidence is subject to such criticism. Such facts were shown by substantial and competent testimony of witnesses who passed over the floor at or about the same time with plaintiff who testified substantially to the fact that, at the time plaintiff fell thereon, the floor presented a smooth, glossy, 'shiny,' and slick appearance and that it was in fact slick and slippery so that one was liable to slip thereon. The testimony of plaintiff shows that, at the time she fell, she slid thereon and that her whole body scooted on the floor after she fell and that the floor was slick and 'shiny' looking. The testimony of Mrs. Straub, her sister, who was with her at the time, was that she observed after plaintiff fell that the floor was slick -- that it looked slick and that it was slick. Being asked if she said that it was slick because her sister fell on it, she replied, 'I said I noticed the floor after she fell, and I noticed it was slick.' She was asked, 'Why do you say it was slick?' and answered, 'Because it was slick.' Mrs. Lotus Snider, a witness for plaintiff, was asked to tell what she observed about the floor on the day that plaintiff fell and answered: 'I observed when I went in the front -- my cousin was right behind me -- I got ahold of her arm to keep from slipping. It was sort of a polished linoleum.' Miss Earleen Snider, a witness for plaintiff, was asked to tell what she noticed about the floor on the day that plaintiff fell and replied, 'Well, I noticed it being a little bit slick. I guess I noticed because she --' referring to her cousin, Mrs. Lotus Snider -- 'slid when we went in, and on account of it being damp on the outside, too.' She was asked if she had noticed its being slick before and answered that she had and that she always noticed the floor and exercised particular caution on that account. Mrs. Ethel Moling, a witness for plaintiff, testified that she noticed the floor was rather slick and so watched her step. Mrs. Irene Christy, a witness for plaintiff, was asked the following questions on her cross-examination and made the following answers thereto:

"'Q. Now, did you notice anything about the floor there? A. Very slick. . . .

"'Q. What did you notice? Describe the condition of the floor. A. Slick, bright finish.

"'Q. How? A. Just a slick, glassy-looking finish.

"'Q. And it looked glassy, is that what you mean, Mrs. Christy. The floor looked shiny? A. Yes; shiny.

"'Q. And because it looked shiny and glassy, that's why you say it was very slick, is it? A. I know it was slick. You know how you walk across a slick floor and kind of slip on it.

"'Q. How's that? A. You can walk across a slick floor and kind of slip on it.

"'Q. Did you slip on it? A. Not enough to fall, but you could feel a slick substance. You know how it is when you walk over a slick floor.'

"On her redirect examination, she was asked the following questions and made the following answers:

"'Q. Describe what the effect was in walking over this floor. A. A slick, slippery condition.

"'Q. How's that? A. A slick, slippery condition.'

"Again on her recross-examination, the following questions were asked her and the following answers were made:

"'Q. Now, you say that it was in a slippery condition. Now, just tell us why you say that? A. Well, I just noticed as I walked in -- I really can't tell you. You know the feeling of walking on --

"'Q. (interrupting) Isn't it just because it looked shiny that you say that? A. No, you have a feeling this --

(Interruption and colloquy of court and counsel.)

"'Q. I believe you made an answer to a question in answer to Mr. Owen to the effect that by walking on it you knew it was slick? A. Yes, sir.

"'Q. Now, explain what you mean by that. A. Well, whenever you step on a slick object you can feel your feet slide.

"'Q. Did your feet slide? A. They didn't slide out from under me, but you can feel them slide back.

"'Q. Did your feet slide back that day? A. Yes, sir.

"'Q. Both of your feet? A. Not at the same time, but when you step on an object like that you can feel it.'

"There is, thus, direct, affirmative, competent evidence that the floor in question was in a slick, slippery, unsafe, and dangerous condition by witnesses who walked upon and saw the same.

"There is likewise evidence that the floor in question had been regularly treated twice a week since it was laid, May 4, 1935, with a wax preparation known as Lightning Luster and that it had been treated with such preparation two days prior to plaintiff's injury thereon. That is, said preparation had been applied to the floor over its entire surface with a brush dipped in the preparation and brushed over the floor, giving to the floor a highly-finished appearance, a smooth and glossy finish. Such preparation was about nine per cent wax, three per cent other solids, and the balance water. It is also common knowledge that the application of wax to the surface of a smooth floor, giving to it the appearance of a highly finished floor, tends to make it slick, slippery, and dangerous to walk on.

"The evidence was conflicting as to whether such preparation applied to the floor in question made it slick and dangerous and unsafe or otherwise. All of plaintiff's witnesses who testified as to the condition of the floor, its having a 'shiny,' glossy, smooth, and slick appearance, testified that it was in fact slick and that one would slide thereon in passing over it, except the defendant Golloday who testified in effect that, even though such preparations gave to the surface of the floor a smooth and glossy appearance, it did not necessarily make it slick. Other witnesses, for defendants, gave evidence to the effect that, while the preparation in question gave to the floor a smooth, glossy and highly-finished appearance, it did not in fact make it slick and slippery and dangerous to use.

"Whether the floor was slick and slippery and dangerous to use thus became a question for the jury and, as far as defendants' contention under this point is concerned, the defendants' requested instructions were properly denied.

"8. Defendants make the further point that, under the evidence in the record, plaintiff was, as a matter of law, guilty of contributory negligence; that she stepped on the floor fully aware of its condition and aware that it was so slick as to be dangerous to walk on and failed to use due...