State ex rel. Shell Petroleum Corp. v. Hostetter

• Citation: 156 S.W.2d 673,348 Mo. 841
• Decision Date: 26 November 1941
• Docket Number: 36720
• Parties: State of Missouri at the relation of Shell Petroleum Corporation, Relator, v. Jefferson D. Hostetter, William Dee Becker and Edward J. McCullen, Judges of the St. Louis Court of Appeals
• Court: Missouri Supreme Court

156 S.W.2d 673

348 Mo. 841

State of Missouri at the relation of Shell Petroleum Corporation, Relator, v. Jefferson D. Hostetter, William Dee Becker and Edward J. McCullen, Judges of the St. Louis Court of Appeals

No. 36720

Supreme Court of Missouri

November 26, 1941

Writ quashed.

Moser Marsalek & Dearing for relator.

(1) The opinion of respondents is in conflict with controlling opinions of this court, in that the respondents, in holding there was an issue of fact for the jury's determination concerning whether the driveway was maintained by relator in a reasonably safe condition for the use of pedestrians using the public sidewalk through which the driveway was maintained, announced a rule of law which is in direct conflict with the following controlling decisions of this court: Callaway v. Newman Mercantile Co., 321 Mo 766; Baustian v. Young and City of St. Louis, 152 Mo. 317; Russell v. Sincoe Realty Co., 293 Mo. 428. (2) The respondents, in remanding the case for a new trial as against relator, have announced a ruling which contravenes the general principle of law stated in this court's decisions, in that the effect of respondents' opinion is that the judgment in favor of B. S. O'Reilly relator's lessee, does not constitute a bar to further proceedings by plaintiff against relator. Stephens v Oberman Mfg. Co., 70 S.W.2d 899; Wright v. Hannan & Everitt, Inc., 336 Mo. 732; Wade v. Campbell, 243 S.W. 248; State ex rel. Heuring v. Allen, 112 S.W.2d 843.

Everett Hullverson and Orville W. Richardson for respondents.

(1) Respondents' opinion is in harmony with other controlling decisions of this court and may be distinguished from Baustian v. Young, Russell v. Sincoe Realty Company, and Callaway v. Newman Mercantile Company, cited by relator. Merrill v. St. Louis, 83 Mo. 244; Benjamin v. Met. St. Ry. Co., 133 Mo. 274, 34 S.W. 590; Wiggin v. St. Louis, 135 Mo. 558, 37 S.W. 528; Reedy v. St. Louis Brewing Assn. and City of St. Louis, 161 Mo. 523, 61 S.W. 859, 53 L. R. A. 805; Perrigo v. St. Louis and Julia Blanke, 185 Mo. 274, 84 S.W. 30; Griffin v. Chillicothe, 311 Mo. 648, 279 S.W. 84; Moore v. Monarch Gasoline & Oil Co., 225 Mo.App. 115, 35 S.W.2d 669; St. Gemme v. Osterhaus, 220 Mo.App. 863, 294 S.W. 1022; Cool v. Rohrbach, 21 S.W.2d 219; Mancuso v. Kansas City, 74 Mo.App. 138; Jegglin v. Roeder, 79 Mo.App. 428; Bentley v. Rothschild Bros. Hat Co., 144 Mo.App. 612, 129 S.W. 249; Sands v. Kansas City, 199 Mo.App. 13, 202 S.W. 294; Kirkpatrick v. Knapp & Co., 28 Mo.App. 427; Stoetzele v. Swearingen, 90 Mo.App. 588; Stevens v. Walpole, 76 Mo.App. 213; Powers v. Penn. Mut. Ins. Co., 91 Mo.App. 55; City of Memphis v. Miller, 78 Mo.App. 67; Rose v. Gunn Fruit Co., 211 Mo.App. 200, 240 S.W. 840; Gordon v. Peltzer, 56 Mo.App. 599. (a) Respondents' opinion should not be quashed in any event, since there is a statutory liability of abutting owners in cities of the first class to maintain sidewalks in front of their premises in good condition. R. S. 1929, secs. 6296, 6334; Crockett v. City of Mexico, 336 Mo. 145, 77 S.W.2d 464. (b) Respondents' opinion should not be quashed since it is in accord with well-recognized principles in Missouri that one may be held liable for the negligent performance or failure to perform a gratuitously assumed obligation or duty. Lambert v. Jones, 339 Mo. 677, 98 S.W.2d 752; Barber v. Kellogg, 111 S.W.2d 201, affirmed, 123 S.W.2d 100; Shaw v. Butterworth, 320 Mo. 622, 38 S.W.2d 57; Laskey v. Rudman, 337 Mo. 555, 85 S.W.2d 501; Ambruster v. Levitt Realty & Inv. Co., 107 S.W.2d 74; Gentili v. Diamaria, 89 S.W.2d 93. (c) Respondents' opinion is in accord with the greater weight of authority in other jurisdictions. Granucci v. Claasen, 204 Cal. 509, 269 P. 437; Joel v. Electrical Research Products, Inc., 94 F.2d 588; Farley v. Lexington Roller Mills Co., 245 Ky. 723, 54 S.W.2d 8; Hippodrome Amusement Co. v. Carius, 175 Ky. 783, 195 S.W. 113, L. R. A. 1918E, 377; Braelow v. Klein, 100 N. J. Law 156, 125 A. 103; Phillips Petroleum Co. v. Childress, 78 F.2d 861; Magid v. New York, 234 A.D. 38, 254 N.Y.S. 236, affirmed in 259 N.Y. 618, 182 N.E. 206; Green v. Chotin, 159 So. 760; Melvin v. Kane, 265 S.W. 1061, affirmed in 277 S.W. 374; Mitchell v. Thomas, 91 Mont. 370, 8 P.2d 639. (2) As to the relator's second assignment of conflict: Since respondents did not rule on the issue raised by relator, this court will not consider this question of conflict. State ex rel. Mo. Mut. Assn. v. Allen, 336 Mo. 352, 78 S.W.2d 862; State ex rel. Silverforb v. Smith, 43 S.W.2d 1054; State ex rel. Public Serv. Comm. v. Shain, 119 S.W.2d 220; State ex rel. Breit v. Shain, 119 S.W.2d 758. Stephens v. D. M. Oberman Mfg. Co. and similar cases relied upon by relator are, in any event, distinguishable since they involve only one duty owed by two persons. Furthermore, those are master and servant cases in which the master's liability is predicated solely upon the doctrine of respondeat superior. Moreover, the relator's duty in this case could not be delegated and, in fact, was not delegated to the lessee. Stith v. Newberry & Sons, Inc., 336 Mo. 467, 79 S.W.2d 447; Stoutimore v. A., T. & S. F. Ry. Co., 338 Mo. 463, 92 S.W.2d 658; Nimmo v. Perkinson Bros. Const. Co., 85 S.W.2d 98. (3) As to the conflict suggested by counsel for respondents: Respondents' opinion, holding that relator's answer sufficiently pleaded contributory negligence, is in conflict with controlling decisions of this court. Relator's answer did not constitute a plea of even general contributory negligence since there were not sufficient supporting facts set forth in the answer and since the answer contained mere legal conclusions. Moreover, relator's answer could not be aided by verdict so as to effect a reversal of the judgment obtained by plaintiff. (a) Assignments of conflict may be raised by counsel for respondents, and even though such conflicts should not be suggested, this court would notice those conflicts on its own motion. State ex rel. Vulgamott v. Trimble, 300 Mo. 92, 253 S.W. 1014; State ex rel. Kansas City So. Ry. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915. (b) Plaintiff's Instruction 1 was not erroneous, requiring reversal and remand, since any instruction may ignore an affirmative defense not pleaded, even though evidence tending to support it may have been admitted without objection. Taylor v. Met. St. Ry. Co., 256 Mo. 191, 165 S.W. 327; Demarey v. M.-K.-T. Ry. Co., 330 Mo. 589, 50 S.W.2d 127. (c) It has been consistently held in controlling cases of this court that a plea of contributory negligence is insufficient, where the plea is not supported by sufficient facts and where a verdict has been returned in favor of plaintiff. Harrison v. Mo. Pac. Ry. Co., 74 Mo. 364; Benjamin v. Met. St. Ry. Co., 245 Mo. 598, 151 S.W. 91; Harrington v. Dunham, 273 Mo. 414, 202 S.W. 1066; Heriford v. Kansas City Rys. Co., 220 S.W. 899; Keppler v. Wells, 238 S.W. 425; Hanke v. St. Louis, 272 S.W. 933; Williams v. Lamp Co., 173 Mo.App. 97, 157 S.W. 130; Miller v. Engle, 185 Mo.App. l. c. 580, 172 S.W. 631; Lunsford v. Macon Produce Co., 260 S.W. 781; Dodge v. Kirkwood, 260 S.W. 1012. (d) State ex rel. Hopkins v. Daues, relied upon by respondents, is not in point since it involved a petition and not an answer, since the petition there did in fact incorporate in it sufficient facts to support the general plea of negligence and since the petition there was aided by a verdict for plaintiff.

OPINION

Leedy, J.

Certiorari to the judges of the St. Louis Court of Appeals wherein relator seeks to have quashed, for alleged conflict, the opinion of said court in the case of Cuddy v. Shell Petroleum Corp. et al., 127 S.W.2d 24. That was an action for personal injuries alleged to have been sustained by plaintiff as the result of slipping and falling as she was passing over a driveway which forms a part of the public sidewalk adjoining an oil and gasoline filling station in the City of St. Louis owned, operated and maintained by Shell Petroleum Co., "by and through its agent, employee and lessee," one B. F. O'Reilly, who also was joined as a defendant. The verdict and judgment in the trial court was in favor of plaintiff and against Shell Petroleum Corp., in the sum of $ 3000, and in favor of the codefendant, O'Reilly. The corporate defendant (hereinafter referred to as "Shell"), relator here, appealed to the St. Louis Court of Appeals, which court reversed the judgment and remanded the cause for error in the instructions. Relator does not complain of that holding, but contends that respondents failed to follow prior controlling decisions of this court in (1) holding that plaintiff made a submissible case, and (2) in remanding the case for a new trial against relator, where it appears on the face of the record that the jury exonerated the lessee, O'Reilly. The cause came to the court en banc on transfer from Division II where an opinion was prepared and filed (but not adopted), which quashed respondents' opinion in part. A different result has been reached on the present submission, but recourse will be made to the opinion prepared in division by adoption of portions of the same.

The facts pertinent to the limited inquiry with which we are concerned, and as found in the opinion under scrutiny, may be summarized as follows: The filling station is located at the Southwest corner of Kingshighway and Wells Avenue; the former runs north and south, and the latter east and west; the property was acquired by Shell in September, 1929; the sidewalk, which was six feet in width (exclusive of the parkway between the walk and curb) was constructed in 1922 the part whereon plaintiff fell and was injured runs along the Wells Avenue side and forms a sloping driveway into the filling station, the...