Taylor v. Prudential Ins. Co. of America
| Decision Date | 03 July 1939 |
| Citation | 131 S.W.2d 226,234 Mo.App. 317 |
| Parties | MARIE TAYLOR, RESPONDENT, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Daniel E Bird, Judge.
Judgment reversed.
Ryland Stinson, Mag & Thomson, William E. Durham and Robert E Rosenwald for appellant.
(1) Appellant was not guilty of any act of negligence entitling respondent to recover in this case. Achter v. Sears, Roebuck & Co. (Mo.), 105 S.W.2d 959, 962; Cluett v. Union Electric Light & Power Co. (Mo.), 220 S.W. 865, 868; Gray v. Pearline, 328 Mo. 1192, 1198, 43 S.W.2d 802; Heidland v. Sears, Roebuck & Co. (Mo. App.), 110 S.W.2d 795, 799-800; Hill v. Illinois Terminal Co. (Mo. App.), 100 S.W.2d 40, 47; Main v. Lehman, 294 Mo. 579, 588, 243 S.W. 91; Stein v. Buckingham Realty Co. (Mo. App.), 60 S.W.2d 712, 713; Zink v. Bopp, 224 Mo.App. 1177, 1183, 31 S.W.2d 563. (2) Respondent failed to make a case for submission to the jury under any legal theory. Anderson v. Kansas City Rys. Co. (Mo.), 290 Mo. 1, 223 S.W. 203; Crabtree v. Railroad, 218 Mo.App. 306, 313, 273 S.W. 1104; Grindstaff v. Goldberg Structural Steel Co., 328 Mo. 72, 79, 80, 40 S.W.2d 702; Hart v. Emery, Bird, Thayer Dry Goods Co. (Mo. App.), 118 S.W.2d 509, 513; McGrath v. St. Louis Transit Co., 197 Mo. 97, 104, 94 S.W. 872; Olson v. Whitthorne & Swan, 263 P. 518, 519, 203 Cal. 206, 58 A. L. R. 127; Polokoff v. Sanell, 52 S.W.2d 443, 446-7; Removich v. Construction Co., 264 Mo. 43, 57-8, 173 S.W. 686; Smith v. Johnson, 219 Mass. 142, 106 N.E. 604.
Howell & Jacobs, Allen E. Cox and Scott R. Timmons for respondent.
(1) It is well established that the appellate court, in passing upon the sufficiency of the evidence to make a case for plaintiff, will review only the evidence most favorable to the plaintiff and treat all of said evidence as true, also giving the plaintiff the benefit of every reasonable inference therefrom. Shroder v. Barron-Dady Motor Co. (Mo.), 111 S.W. 66; Rowe v. Missouri-Kansas-Texas R. R. Co., 339 Mo. 1145, 100 S.W.2d 480; Stiner v. Deagen (Mo. App.), 101 S.W.2d 519, l. c. 522; Belzer v. Sears-Roebuck & Co. (Mo. App.), 76 S.W.2d 701; Bennett v. Royal Union Life Ins. Co. (Mo. App.), 112 S.W.2d 134. (2) The defendant insurance company, as owner of the apartment hotel, having provided a doorstop for the door leading out of the lobby into the courtyard, and having assumed to keep said door open, was required to use ordinary care to see that said doorstop was in position to keep the door open so that same would not close unexpectedly from causes which the defendant could reasonably anticipate. The failure of the defendant to exercise such care is negligence for which the defendant is liable. And the inference of such negligence is permissible under the res ipsa loquitur rule. Barber v. Kellogg (Mo. App.), 111 S.W.2d 201, l. c. 204; Gentile v. Dimaria (Mo. App.), 89 S.W.2d 93, l. c. 96; 36 C. J. 214, sec. 891 and cases there cited; 16 R. C. L., sec. 104; Lambert v. Jones, 339 Mo. 677, 98 S.W.2d 752, l. c. 755, 756. (3) Plaintiff's evidence made a case under the res ipsa loquitur rule. The evidence shows: (a) the apartment building and the common passageway and door were under the complete and sole control of the defendant; (b) the movement of the door was extraordinary and unusual, it never having slammed before after having been opened back against the wall; and (c) plaintiff did not know and could not know the exact cause of the unexpected slamming of the door. Under all of the authorities this makes a case under the res ipsa loquitur rule. Anderson v. Kansas City Railway Co. et al., 290 Mo. 1, 233 S.W. 203; Evans v. Missouri Pacific R. R. Co. (Mo. ), 116 S.W.2d 8, l. c. 9; Pandjiris v. Oliver Cadillac Co., 339 Mo. 711, 98 S.W.2d 969; McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557; Thompson v. Kansas City Public Service Co. (Mo. App.), 114 S.W.2d 145, l. c. 146; Gordon v. Muehling Packing Co., 328 Mo. 123, 40 S.W.2d 693, l. c. 696; Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133, 32 S.W.2d 21, l. c. 24; Colletto v. Hudson & M. R. Co., 90 N.J. Law 315, 100 A. 200; Kellogg v. Boston & M. R. Co., 210 Mass. 324, 96 N.E. 525; Silva v. Boston & M. R. Co., 204 Mass. 63, 90 N.E. 547; Richardson v. Portland Trackless Car Co., 113 Ore. 544, 233 P. 540. (4) There was no extraordinary wind blowing at the time of plaintiff's injury. Defendant was bound to anticipate that ordinary wind would cause the door to slam if the doorstop was not pressed down. But it is well established that an act of God concurring with negligence of the defendant will not relieve defendant from liability and this rule is applicable in res ipsa loquitur cases. 1 C. J. 1175, sec. 2; Ford v. Wabash R. R. Co., 318 Mo. 723, 300 S.W. 769; Meadows v. Wabash R. R. Co., 221 Mo.App. 373, 273 S.W. 130; Feeney v. New York Waist House, 105 Conn. 647, 136 A. 554; Sinkovitz v. Peters Land Co., 5 Ga.App. 788, 64 S.E. 93; Detzur v. B. Stroh Brewing Co., 119 Mich. 282, 77 N.W. 948; Pearson v. Ehrich, 133 N.Y.S. 273, 148 A.D. 680; Leonard Bros. v. Newton (Tex., 1934), 71 S.W.2d 613.
This is an appeal by the Prudential Insurance Company of America from a judgment of the court sustaining plaintiff's motion to set aside an involuntary nonsuit. At the close of plaintiff's case defendant offered a peremptory instruction which was given by the court. Thereupon plaintiff took an involuntary nonsuit with leave and filed a motion to set said nonsuit aside. This motion the court sustained and defendant has duly appealed to this court.
Plaintiff's amended petition, upon which the case was tried, pleads general negligence, alleging also that the defendant insurance company was the owner and operated and managed an apartment house in Kansas City, Missouri, and, on the 15th day of July, 1937, said defendant was in sole control of said apartment house or hotel, and that a door opened from the lobby thereof at the west side of said lobby into a courtyard on the west side of said hotel and that said lobby and door were under the complete control and maintenance of the defendant; that on said day plaintiff went to said apartment hotel at the invitation of one of the occupants thereof and while passing through said door to go into said courtyard said door suddenly and unexpectedly closed, catching the little finger of the hand of the plaintiff between the door and doorjamb, injuring said finger so seriously that it was necessary to amputate said finger at the proximal joint; that said injury was caused by the negligence of said defendant and that plaintiff was unaware or ignorant of the cause or causes that caused the unexpected closing of said door.
Defendant's answer was a general denial coupled with a plea of contributory negligence.
At the beginning of the trial it was stipulated that, at the time of plaintiff's injury, the defendant owned the property at 2840 Forest Avenue, Kansas City, Missouri, which was managed by the Shryock Realty Company for the defendant. It was also agreed that Nora E. McElvain, employed by said realty company, lived at said premises and rented out apartments to tenants.
The evidence discloses that the plaintiff on July 15, 1937, visited a Mrs. Stotts, a tenant in the apartment building in question, and that she was there during the dinner hour at which time there was a rain storm accompanied with a rather strong wind and plaintiff's evidence is to the effect that after dinner she with her daughter and Mrs. Stotts went to the lobby and started out into the court at the rear of the apartment building to look at a rock garden located there. At that time there was a slight fall of rain and some wind.
The door leading to the garden is at the west side of the lobby and opens on a landing which is five steps above the floor of the lobby, from which landing stairs ascend to the second floor. As plaintiff, her daughter and Mrs. Stotts approached the open door there was no one on the landing or near the door, although there were several people in the lobby. The door, a wooden door of ordinary size and appearance with a stop attached and having several glass panels, opened against the south wall at the side of the landing and plaintiff saw no movement of the door as she approached it. Mrs. Stotts and plaintiff's daughter preceded plaintiff through the doorway, pushing open the screen door. As plaintiff stepped out on the platform west of the door she rested her right hand on the door casing and the door closed suddenly, catching her little finger and so injuring it that the finger was later amputated at the second joint.
Plaintiff did not see the stop on the door and did not know it was there. Mrs. Stotts examined the stop the morning following the incident in question and found it to be functioning in a normal way. There is evidence that the door never had slammed shut before.
The plaintiff alleged in her petition that it was the duty of defendant to keep the lobby of the apartment building, the landing, the doors and the court in a reasonably safe condition for the protection of its tenants and their callers and visitors. The general allegation of negligence is predicated upon the allegation of failure of defendant to do so.
We will continue to refer to the respondent as plaintiff and to the appellant as the defendant.
The appealing defendant makes specification of errors as follows:
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