Stoll v. First Nat. Bank of Independence

• Decision Date: 03 July 1939
• Docket Number: No. 19376.,19376.
• Citation: 132 S.W.2d 676
• Parties: SIMON STOLL, RESPONDENT, v. FIRST NATIONAL BANK OF INDEPENDENCE, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

132 S.W.2d 676

SIMON STOLL, RESPONDENT, v. FIRST NATIONAL BANK OF INDEPENDENCE, A CORPORATION, APPELLANT.

No. 19376.

Kansas City Court of Appeals, Missouri.

July 3, 1939.

Appeal from the Circuit Court of Jackson County. — Hon. Thomas J. Seehorn, Judge.

REVERSED.

Ryland, Stinson, Mag & Thomson and Wright Conrad for appellant.

(1) The court erred in refusing defendant's peremptory instruction directing a verdict for defendant at the close of all the evidence. (a) The defendant was guilty of no negligence, as it appears from plaintiff's own testimony that plaintiff's wife had as full knowledge of the condition of the floor and stairs in question as did the defendant. Kelly v. Benas, 217 Mo. 1, 116 S.W. 557; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278; Main v. Lehman, 295 Mo. 174, 243 S.W. 91; Mullen v. Sensenbrenner, 260 S.W. 982; Ilgenfritz v. Mo. P. & L. Co., 340 Mo. 648, 101 S.W. (2d) 723; Asbury v. Fidelity National Bank and Trust Co., 231 Mo. App. 437, 100 S.W. (2d) 946; Paubel v. Hitz, 96 S.W. (2d) 369; State ex rel. Golloday v. Shain et al., 341 Mo. 889, 110 S.W. (2d) 719; Cash v. Sonken-Galamba Co., 17 S.W. (2d) 927; Vairo v. Vairo, 99 S.W. (2d) 113; Lapin v. St. Louis National League Ball Club, 33 S.W. (2d) 1025. (b) The negligence alleged and sought to be proved by the plaintiff was not the proximate cause of the fall and injury to plaintiff's wife. State ex rel. Boeving et al. v. Cox et al., 310 Mo. 367, 276 S.W. 869; Coble v. St. Louis, San Francisco Ry. Co., 38 S.W. (2d) 1031; Carle v. Akin, 87 S.W. (2d) 406; Allen v. Wilkerson, 87 S.W. (2d) 1056. (2) The court erred in giving plaintiff's instruction "1". (3) The court erred in refusing defendant's requested instruction "S." (4) The court erred in giving plaintiff's instruction "4." Webster's New International Dictionary, Second Series Unabridged; Salmon v. Town of Trenton, 21 Mo. App. 182; Gleason v. Texas Co., 46 S.W. (2d) 546; Boyer v. General Oil Products, Inc., 78 S.W. (2d) 450; Daniel v. Artesian Ice & Cold Storage Co., 45 S.W. (2d) 548.

Cowgill & Popham, Guy W. Green, Jr., and Elmer W. Ahmann for respondent.

(1) The court properly refused defendant's peremptory instruction in the nature of a demurrer to the evidence at the close of all the evidence because: (a) Plaintiff did not know that the diamond insert was unusually slick and slippery until after she fell, and defendant admits evidence sufficient in other respects to show negligence and doesn't claim contributory negligence. Clooney v. Wells (Mo.), 252 S.W. 72; Aeby v. Mo. Pac. Ry. Co., 285 S.W. 965; Holloway v. Barnes, etc., Co., 15 S.W. (2d) 917; Swift v. Frisco, 15 S.W. (2d) 964; Asbury v. Fidelity Bank, 100 S.W. (2d) 946. (b) Plaintiff's knowledge of danger (if any) could only bear on contributory negligence and not defendant's negligence and it is not contended that she was guilty of contributory negligence as a matter of law. Allen, etc., Co. v. Richter, 228 S.W. 827; Evans v. Sears, Roebuck Co., 104 S.W. (2d) 1035; Frank v. Myers, 109 S.W. (2d) 54; Gosnel v. Ins. Co., 109 S.W. (2d) 59. (c) There was an abundance of evidence of negligence in maintaining top step with diamond of Tennessee marble which was unusually slick and dangerous. Scott v. Klines, 284 S.W. 831; Asbury v. Fidelity Bank, 100 S.W. (2d) 946; Evans v. Sears, Roebuck Co. (Mo. App.), 104 S.W. (2d) 1035; Phelps v. Montgomery Ward & Co., 107 S.W. (2d) 939; Frazier v. Mace-Ryer Co., 114 S.W. (2d) 150; Hubenschmidt v. S.S. Kresge Co., 115 S.W. (2d) 211; Cannon v. Kresge Co. (Mo. App.), 116 S.W. (2d) 559; Olds v. St. Louis, etc., Corp., 119 S.W. (2d) 1000. (d) Negligence alleged shown to be proximate cause of injury. Farmers Bank v. Harris, 250 S.W. 946; Purdy v. Loew's, etc., Co., 294 S.W. 751; Rositzky v. Burns, 295 S.W. 830; Cook v. Sears, 71 S.W. (2d) 73; G.M.A.C. v. Lyman, 78 S.W. (2d) 109; Asbury v. Fidelity Bank, 100 S.W. (2d) 946; Long v. F.W. Woolworth Co., 109 S.W. (2d) 85. (2) The court properly gave plaintiff's instruction 1. (3) The court properly refused defendant's requested instruction S. (4) The court properly gave plaintiff's instruction 4 because it did not assume facts in issue and appellant's assignment is insufficient to raise anything for review. Clooney v. Wells (Mo.), 252 S.W. 72; McClure v. Investment Co., 19 S.W. (2d) 531; Starnes v. St. Joseph, etc., Co., 22 S.W. (2d) 73; State ex rel. v. Haid, 59 S.W. (2d) 1057; Hill v. St. L.P.S. Co., 64 S.W. (2d) 633; Larey v. M., K.T. Ry. Co., 64 S.W. (2d) 681; Lyons v. St. Joseph Belt Ry. Co., 84 S.W. (2d) 933; Asbury v. Fidelity Bank, 100 S.W. (2d) 946.

SPERRY, C.

Simon Stoll, plaintiff, sued First National Bank of Independence, defendant, because of the loss of services and medical expense occasioned by injuries sustained by plaintiff's wife when she fell in defendant's bank building. Judgment was for plaintiff and defendant appeals. The parties will be referred to herein as plaintiff and defendant.

Plaintiff moves dismissal of the appeal because of the alleged violation of our rule requiring appellant to file "a clear and concise statement of the case without argument, reference to issues of law or repetition of testimony of witness." In this connection it is urged, first, that defendant has made misleading statements regarding the facts and has stated the facts from the standpoint of defendant's evidence. We do not find this charge to be substantiated.

It is next urged that the statement makes no reference to the date and term when the judgment was rendered, the motion for new trial, the action of the court hereon, the application for allowance of appeal or the time and term at which application was made and appeal allowed. The statement contains the following:

"This is an appeal by the First National Bank of Independence, Missouri, (Appellant) from a judgment obtained by the plaintiff, (Respondent) Simon Stoll, in the Circuit Court of Jackson County, Missouri, at Kansas City, in the sum of $3500 for the loss of society, companionship, services and expenses incurred by him, etc., on account of personal injuries sustained by his wife, Eliza Stoll, as a result of a fall on defendant's premises."

No claim is made that this court does not have jurisdiction and in view of that fact and the further fact that, except for dates, virtually all jurisdictional facts appear in the above statement, we hold that, in this respect, the statement substantially complies with the rule. It is not deficiant to anything like the extent as was the statement in McDonnell v. Hawkeye Life Insurance Company, 84 S.W. (2d) 387, referred to by plaintiff, and certainly unlike that discussed in Roberts v. Hogan, 269 S.W. 652, upon which the ruling in the Hawkeye case is based.

After rendering a reasonably fair statement of the case defendant, at the conclusion thereof, briefly narrates the gist of the petition with short quotations therefrom, states that the answer was a general denial, and then sets out, verbatim, two of plaintiff's five given instructions, one given "modified" instruction, and one of defendant's refused instructions. There was no necessity whatever for these matters to be included in a statement. However, they appear at the end of the statement in chief and no argument is offered in connection therewith. We think such matters should be treated as surplusage rather than held to render the statement fatally defective.

It is next said that the assignments of errors are in language too broad and general and should not be reviewed for that reason. The rule is that if the errors complained of are specifically set forth either under assignments or under "Points and Authorities" in the brief, and the reasons why the error is claimed are there sufficiently definite and specific the requirements of our rule are met. [Schell v. F.E. Ransom Coal & Grain Company, 79 S.W. (2d) 543, l.c. 545.] We think that under "Points and Authorities" defendant has properly presented, under his point one, the question of the alleged error on the part of the trial court in refusing to sustain a demurrer to the evidence offered at the close of the whole case.

The purpose of our rules is to assist the court in the speedy disposition of cases coming before it, not to provide a method by which we may refuse to decide appeals on their merits. We think the statement and brief here are sufficient to advise the court and adverse counsel of the nature of the case and of the errors complained of, although it is surely inartifically drawn. [Round Prairie Bank of Fillmore v. Downey, 64 S.W. (2d) 701, l.c. 703.] The motion to dismiss should be overruled.

Mrs. Stoll was a customer of defendant's bank and had been a regular visitor there for some two and one-half or three years prior to the injury. Defendant's banking house was about six years old. Customers, including Mrs. Stoll, entered from the street into a lobby from which two steps led upward onto the main floor of the bank. The steps were about thirteen feet wide and they, as well as the floor at the top, were of honed Tennessee marble. Plaintiff's expert witnesses testified that Tennessee marble is one of the hardest of domestic marbles. It is mined in chunks and sawed into slabs of desired thickness. It is next smoothed and ground with steel disks. Next, it is rubbed on a sand bed, and then with grit. The next process is to hone it. This gives it a smooth hard finish, not a polished or slick finish, and is known as a "hone finish." If further polishing is desired it is given a glossy, polished finish with oxalic acid. These witnesses also testified that Tennessee honed marble is customarily used in this vicinity for floors and stair steps. The evidence was that, when this marble is properly hone finished, further honing will not make it slicker or more polished but will merely continue to grind away the marble. The floor and steps were clean. It is not claimed that Mrs. Stoll was caused to fall because of any foreign substance...