State ex rel. Trading Post Co. v. Shain

• Decision Date: 03 May 1938
• Docket Number: No. 35696.,35696.
• Citation: 116 S.W.2d 99
• Parties: STATE OF MISSOURI at the relation of TRADING POST COMPANY, a Corporation, Relator, v. HOPKINS B. SHAIN, EWING C. BLAND and ROBERT M. REYNOLDS, Judges of the Kansas City Court of Appeals, and STELLA F. STANFILL.
• Court: Missouri Supreme Court

116 S.W.2d 99

STATE OF MISSOURI at the relation of TRADING POST COMPANY, a Corporation, Relator, v. HOPKINS B. SHAIN, EWING C. BLAND and ROBERT M. REYNOLDS, Judges of the Kansas City Court of Appeals, and STELLA F. STANFILL.

No. 35696.

Supreme Court of Missouri.

Division Two, May 3, 1938.

Certiorari.

OPINION OF COURT OF APPEALS QUASHED.

Henry S. Conrad, L.E. Durham, Ilus M. Lee and Wright Conrad for relator.

(1) The Court of Appeals in affirming the verdict and judgment for the plaintiff in the case of Stella F. Stanfill v. Trading Post Company, a corporation, now reported in 106 S.W. (2d) 952, has affirmed a verdict based wholly on guess, speculation and conjecture and the Court of Appeals in so doing has contravened the controlling decisions of this court. Coble v. Kansas City Term. Ry. Co., 38 S.W. (2d) 1031; McKeighan v. Kline's, 339 Mo. 523, 98 S.W. (2d) 555; Williams v. Kansas City Term. Ry. Co., 288 Mo. 11, 231 S.W. 954; Taylor v. Kansas City Term. Ry. Co., 240 S.W. 512. (2) The opinion of the Court of Appeals in affirming the judgment herein has affirmed a jury verdict based on an inference upon an inference in contravention of and in conflict with the controlling decisions of this court. Sexton v. Met. St. Ry. Co., 245 Mo. 275. (3) An opinion of the Court of Appeals will be quashed by the Supreme Court if the holding of the Court of Appeals contravenes the general principles of law announced in the controlling decisions of the Supreme Court. State ex rel. Kansas City So. Ry. Co. v. Shain, 105 S.W. (2d) 915.

James R. Sullivan and Hume & Raymond for respondents.

(1) The verdict and judgment for the plaintiff is sustained by substantial evidence and the opinion of the Court of Appeals affirming the judgment is in harmony with the latest previous and controlling decisions of this court. Tueteberg v. St. L. Pub. Serv. Co., 41 S.W. (2d) 956; Hogan v. Kresge, 93 S.W. (2d) 119; Thompson v. Lamar, 322 Mo. 514, 17 S.W. (2d) 970; Harrison v. St. L.-S.F. Ry. Co., 99 S.W. (2d) 843; Doyle v. St. L. Merchants' Bridge Term. Ry. Co., 326 Mo. 425, 31 S.W. (2d) 1012; State v. Janes, 318 Mo. 525, 1 S.W. (2d) 138. (2) The opinion here does not approve basing an inference on an inference. There is substantial evidence in this case sustaining the verdict and no inference was based on an inference in arriving at this conclusion. State ex rel. St. Charles v. Haid, 325 Mo. 107, 28 S.W. (2d) 102; Fox v. Mo. Pac. Railroad Co., 335 Mo. 984, 74 S.W. (2d) 611; Frese v. Wells, 40 S.W. (2d) 654; Morris v. DuPont de Nemours & Co., 109 S.W. (2d) 1228.

WESTHUES, C.

Relator seeks to quash the record and opinion of the Kansas City Court of Appeals in the case of Stanfill v. Trading Post Company, a corporation, reported in 106 S.W. (2d) 952, on the theory that the opinion is in conflict with controlling decisions of this court.

The plaintiff in that case sued relator, Trading Post Company, to recover damages for personal injuries which plaintiff alleged she sustained as the result of a fall in a store operated by the Trading Post Company. Relator's contention is, that the evidence was insufficient to establish liability on the part of the Trading Post Company, and the holding of the Court of Appeals that it was sufficient, contravened controlling decisions of this court. The facts were stated in respondents' opinion as follows:

"Reverting to the case in hand, the plaintiff, a customer of defendant's store, entered said store for the purpose of making purchase of merchandise. There was a meat counter on the south side of the store. In the center and on both sides of the store there were counters and display racks, upon which groceries and vegetables were on display. On the day in question, February 13, 1935, there is testimony that there was moisture in the air and trace of rain had fallen during the day.

"The plaintiff testified in her own behalf, that at shortly after 6 P.M. she entered defendant's store to make purchases and first went to the meat counter on the south side, and not at the time seeing what she wanted, concluded to go to the south side and market for groceries and vegetables with intent to return to the meat counter later. She further testified that on the way to the south side she slipped and fell on the floor and thereby received the injuries for which she herein complains. The defendant (plaintiff) testified that in entering the store, in going to the meat counter and in proceeding to the south side, she did not notice any evidence of the conditions that she claims caused her to slip and fall. She repeatedly reiterated that she did not look at the floor. She testified, `I wasn't looking at the floor. I was looking at the display of groceries and meats, going to the meat counter.'

"The plaintiff testified that the first notice she had of the condition of the floor was after she started to slip. When asked what caused her to slip and fall she said, `There was some dirty, bruised, mushy celery stalks and lettuce leaves on the floor.' When asked as to the appearance of the foreign substance on the floor, the witness said, `Well, it was dark and mashed and the floor was wet and I stepped on it and my foot went from under me and I fell.'

"The plaintiff stated that her left heel slipped about two and a half feet and that there was some of the lettuce leaves on her heel after she fell.

"In cross-examination of the plaintiff, the following questions and answers appear:

"`Q. (BY MR. CONRAD): When you opened the door to enter the store the floor was there open to your vision, was it not? A. Yes, sir.

"`Q. And as you went into that store did you see any evidence of moisture there? A. Well, I didn't pay any attention to the floor. I was looking across to the meat counter. I didn't look down to the floor.

"`Q. Did you see whether there was any there at all? A. I didn't pay any attention to it then.

"`Q. You didn't see any water then as you went into the store? A. I didn't pay any attention to it.

"`Q. You didn't pay any attention to it? A. No, sir.

"`Q. But, did you in fact, see any water there? A. No.

"`Q. Did you observe any evidences of moisture there? A. No, sir.

"`Q. But as a matter of fact, you knew, did you not, that in all probability there was moisture coming from the street into the store? A. I never thought anything about it.'

"The plaintiff was confronted on cross-examination with what was termed a report of the accident given to two men who called upon her about two weeks after the accident.

"The above is shown to be a report of an interview when plaintiff was in the hospital and was not signed by plaintiff. The plaintiff made denial as having said what was purported concerning condition of floor, and made the statement, `I don't remember what I answered that day, because I was too sick.'

"We have confined the outline of evidence to the question of the demurrer alone."

The particular point in this case is, was the evidence related sufficient to justify an inference that the vegetable matter was upon the floor a sufficient length of time to impart notice to the operators of the store, causing a failure to remove to constitute negligence? In disposing of this point respondents' opinion states:

"It is shown by the evidence that the vegetables upon display in the vicinity of where plaintiff fell were prepared at another place where the unsalable leaves and stalks were left and the salable produce was placed where they were for inspection and purchase by customers. From this fact, we conclude that the bruised and darkened conditions could be caused by remaining on the floor for such a length of time as to cause this mashed and darkened condition to be occasioned by customers walking on same in making inspection and purchases.

"The above being considered, we conclude that if the most favorable evidence on the part of plaintiff be considered and all contradictory evidence on the part of defendant disregarded, there is shown to have been presented facts that permitted the question of notice to go to the jury. It must be conceded that if the said foreign substance had been there a sufficient length of time to impart notice, the negligence of defendant is thereby established."

In another portion of the opinion the court stated as follows:

[1] "It is the law of this State that the duty of storekeeper to customers does not rest on the same basis as that of master to servant. However, the burden is upon the customer sustaining a fall by slipping upon foreign substance on the floor to produce evidence from which notice as to the foreign substance can reasonably be inferred to have been there for a sufficient time to impart notice. [McKeighan v. Kline's, Inc., 339 Mo. 523, 98 S.W. (2d) 555.]"

Relator asserts that respondents' opinion, holding the evidence justified a finding that the foreign substance had been upon the floor a sufficient length of time to impart notice, is in conflict with the holding in McKeighan v. Kline's Inc., supra. In this we think relator is correct. From the view we take of the two cases, the evidence in the McKeighan case was more potent than that in the case now before us. In the ...