Stofer v. Montgomery Ward & Company

• Decision Date: 14 November 1957
• Docket Number: No. 15776.,15776.
• Citation: 249 F.2d 285
• Parties: Alma STOFER, Appellant, v. MONTGOMERY WARD & COMPANY, Inc., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

249 F.2d 285 (1957)

Alma STOFER, Appellant, v. MONTGOMERY WARD & COMPANY, Inc., Appellee.

No. 15776.

United States Court of Appeals Eighth Circuit.

November 14, 1957.

F. Philip Kirwan, Kansas City, Mo. (Richard W. Miller and Margolin & Kirwan, Kansas City, Mo., on the brief), for appellant.

Douglas Stripp, Kansas City, Mo. (Robert B. Olsen and Watson, Ess, Marshall & Enggas, Kansas City, Mo., on the brief), for appellee.

Before GARDNER, Chief Judge, and VOGEL and VAN OOSTERHOUT, Circuit Judges.

VOGEL, Circuit Judge.

On May 8, 1954, Alma Stofer, plaintiff and appellant herein, entered a store owned and operated by the defendant-appellee, Montgomery Ward & Company, at Kansas City, Missouri. While in the store as an invitee thereof she sustained accidental injuries which she claimed arose out of the negligence of Montgomery Ward. In her first trial she received a verdict at the hands of the jury in the amount of $5,000.00. The trial court entered an order granting a new trial. At the second trial, and at the conclusion of the plaintiff's evidence, the court directed a verdict in behalf of the defendant. Diversity of citizenship and the requisite amount make for federal jurisdiction. The parties will be referred to as they were in the trial court.

Plaintiff contends on appeal here that the court erred in granting the new trial and also erred in granting a directed verdict in the second trial.

Plaintiff's claim arose out of her collision with a movable garment rack in an aisle of the defendant's store. On the day in question, at about 9:30 a. m., plaintiff, aged 65, accompanied by her infirm older sister and a friend, entered the defendant's store to shop. While shopping in the defendant's basement department plaintiff was attracted by a dress hanging at the west side of the main aisle. She started to cross over to that dress by way of an aisle which crossed the main center aisle at a point south of where the dress was hanging. Her attention was diverted from this purpose temporarily by another less attractive dress, also hanging at the west side of the main aisle at its intersection with the cross-aisle being used by the plaintiff. After crossing the main aisle from east to west and hesitating at the less attractive dress for a moment, plaintiff stepped off to her right to continue toward the dress that she had first seen. At that precise moment a collision occurred. Plaintiff's momentary diversion here, immediately prior to the collision, appears to coincide with the "brief matter of seconds" between the parking of the rack and plaintiff's collision with it, as was stated by defendant's manager under cross examination by the plaintiff. Fed. Rules Civ.Proc. Rule 43(b), 28 U.S.C.A. Plaintiff did not see the object with which she collided until "the very moment" that the collision occurred when she turned and stepped off to her right. She testified that it had not been there when she first looked down the aisle and saw the first dress. She didn't know how it got there. The impact first occurred on her right ankle and shin. Plaintiff fell to the floor, was injured and lost consciousness. Upon regaining consciousness plaintiff looked up and saw the garment rack with which she had collided. This rack was described as being over 70 inches tall with a horizontal metal platform base approximately 2 × 6 feet painted dark brown overall and supported at a height of 10 inches by rubber wheels. The uppermost part of this conveyance was a horizontal longitudinal metal pipe cross-bar or rack supported at either end by inverted U-shaped metal pipe supports attached at corresponding corners of the platform base. It was empty at the time of the collision.

Plaintiff was hospitalized for 11 days. For approximately three months thereafter she returned regularly for further medical treatment. Some of her medical expenses were paid by Montgomery Ward. Plaintiff, a bookkeeper for a Kansas City firm, was prevented from working for the first four months following her injury.

In plaintiff's original complaint she alleged, inter alia, that:

"* * * a merchandise rack or cart, * * * was, as the direct and proximate result of the negligence and carelessness of the defendant, caused, allowed and permitted to strike plaintiff with great force, throwing her down and causing her to sustain serious injuries, * * *."

At the first trial plaintiff failed to establish that she had been struck by a moving garment rack. On the contrary, the evidence of the defendant tended to prove that she had bumped into a garment rack that was standing stationary in the aisle. The court overruled defendant's motion for a directed verdict and submitted the case to the jury, which returned a verdict for plaintiff for $5,000.00. Thereupon, defendant moved for judgment in its favor in accordance with its motion for a directed verdict. The trial court denied defendant's motion for judgment but granted its alternative motion for a new trial on the ground that it had erred to the prejudice of the defendant in submitting the case to the jury, over the defendant's objections, on a theory of specific negligence, not pleaded or justified by plaintiff's complaint. In so doing, the court stated that upon retrial "* * * it may be that plaintiff can make a submissible case by alleging in her complaint that the defendant negligently allowed this portable rack to remain in this main aisle, without warning thereof to plaintiff, who walked into it and was thereby caused to be thrown and injured, although the question of negligence — and particularly of contributory negligence `in any degree' — (questions with which I am here not properly concerned), would be indeed close." (Emphasis supplied.) Accordingly, in passing upon the motion for a new trial the trial judge did not pass upon the question of defendant's negligence nor of the plaintiff's contributory negligence, but determined that the defendant had been prejudiced by the submission of the case to the jury, over the defendant's protest, on a theory contrary to the allegations of plaintiff's complaint.

A motion for a new trial is always directed to the sound discretion of the trial court. It is only for a clear abuse of that discretion that an appellate court will reverse. In determining that the defendant had been prejudiced by the submission of the case to the jury on a theory of specific negligence not justified by the complaint and without the complaint having been amended and without the defendant having an opportunity of preparing to meet the new theory for recovery, the trial court was exercising its discretion and we feel that the circumstances do not justify us in concluding here that that discretion was abused.

After the court's order granting a new trial and a motion to reconsider such order had been overruled, plaintiff amended her complaint, alleging in part:

"* * * plaintiff and a merchandise rack or cart, * * * were, as the direct and proximate result of the negligence and carelessness of the defendant, caused, allowed and permitted to collide with great force, throwing plaintiff down and causing her to sustain serious injuries, * * *."

At the conclusion of the plaintiff's case in the second trial defendant moved for a directed verdict.¹ In granting the motion the court stated to the jury:

"* * * the defendant has taken the position, accepting as true everything that the plaintiff has presented in the way of evidence, that notwithstanding that testimony the plaintiff has failed to make a case which can be submitted to the jury. In other words, that plaintiff, as a matter of law, has not proved, or has not presented facts sufficient to furnish a basis for a judgment against the defendant. And it is the view of the Court that that position is correct, that the plaintiff, having the burden of proof, has failed, under the evidence most favorable to her, to prove that the defendant was guilty of any negligence, and has failed to prove that the acts shown to have been done by the defendant were the proximate cause of the accident sustained and the injuries sustained by Miss Stofer."

The trial court made it clear that it was not ruling on the question of possible contributory negligence on the part of the plaintiff. The only question presented here is whether as a matter of law plaintiff produced any evidence justifying the conclusion that defendant was guilty of negligence which was a proximate cause of the accident and plaintiff's injuries. Were the facts such that the minds of reasonable men could not disagree thereon? We have at least one indication that in the first trial on similar evidence 12 jurors believed the defendant to have been guilty of negligence which was a proximate cause of the accident and the injuries of the plaintiff. But a consideration of the question requires an examination of the law of Missouri.

We must determine whether, under Missouri law, such evidence as was introduced at the second trial, viewed in a light most favorable to the plaintiff, affords a reasonable basis for a jury's conclusion that the defendant owed the plaintiff a duty which was breached, and which breach proximately caused plaintiff's injuries. If there is a reasonable evidentiary basis for such finding of negligence as to defendant, we must reverse and remand the case for a new trial. Clay County Cotton Co. v. Home Life Ins. Co., 8 Cir., 1940, 113 F.2d 856. If, however, the only reasonable conclusion that can be made is that defendant was not negligent as to the plaintiff, then we must affirm. Egan Chevrolet Co. v. Bruner, 8 Cir., 1939, 102 F.2d 373, 122 A.L.R. 987.

The most recent statement of the Supreme Court of Missouri relative to the duties of a storekeeper to his business invitees is found in the case of Dixon v. General Grocery Co., Mo., 1956, 293 S.W.2d 415, 419:

"We stated in Giles v. Moundridge Milling Co., 351 Mo. 568, 173 S.W.2d 745, 748 4, that the inviter `is not an insurer of his business

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