Tomlin v. Alford, 48046

• Decision Date: 13 November 1961
• Docket Number: No. 48046,No. 1,48046,1
• Parties: Lester TOMLIN, Appellant, v. Marion ALFORD, d/b/a Old Orchard Market, Respondent
• Court: Missouri Supreme Court

Page 705

351 S.W.2d 705

Lester TOMLIN, Appellant, v. Marion ALFORD, d/b/a Old Orchard Market, Respondent.

No. 48046.

Supreme Court of Missouri, Division No. 1.

Nov. 13, 1961.

Motion for Rehearing or to Transfer to Court en Banc Denied

Dec. 11, 1961.

Donald S. Hilleary, Harry L. Hilleary, St. Louis, for appellant.

John J. Cole, Heneghan, Roberts & Cole, St. Louis, for respondent.

HOLLINGSWORTH, Judge.

In this action plaintiff seeks to recover the sum of $15,000 for personal injuries allegedly sustained from a fall in a storage shed used and occupied by defendant in the operation of a retail grocery store and meat market in Webster Groves, Missouri. The case has been twice tried, each trial resulting in a verdict for defendant. Plaintiff, on December 31, 1929, appealed from the judgment rendered in conformity with the last verdict. It appearing that the amount in dispute exceeds $7,500 and that the appeal was taken prior to January 1, 1960, jurisdiction lies in this court. Constitution of Missouri, Art. V, Sec. 3, V.A.M.S.; Senate Bill No. 7, Laws 1959, now Sec. 477.040 RSMo 1959, V.A.M.S. (to which revision all statutory references are made unless otherwise indicated).

The storage shed in which plaintiff allegedly fell was attached to the rear of defendant's store and was used for storage of empty soft drink bottles. Plaintiff, at the times herein material, was an employee of Canada Dry Bottling Company, a bottler and distributor of such beverages. As such employee, he made regular trips to defendant's store and storage shed to deliver his employer's products and reclaim its empty bottles. Plaintiff alleged and testified that he was caused to fall and sustain injuries as the result of the act of defendant's employee in placing empty beverage bottles in the path of his work in collecting empty bottles from the basement. Defendant denied that allegations of the petition and alleged that, if injured, plaintiff's injuries were due in whole or in part to his failure to erercise ordinary care for his own safety. The gist of defendant's evidence was that if plaintiff was injured in said shed, neither defendant nor any of his employees had knowledge thereof nor had anything whatever to do with causing it. On this appeal, plaintiff asserts two grounds for reversal and remand for new trial: (1) that the trial court erred in giving defendant's Instruction No. 4 submitting the issue of plaintiff's contributory negligence for the reason that it was contradictory of and inconsistent with defendant's evidence and Instruction No. 5 which submitted defendant's plea that plaintiff's fall, if sustained, was not caused by any act or omission of defendant's employees; and (2) error in admission of plaintiff's army medical records which impeached plaintiff's testimony that he suffered presently existing low back injuries from his alleged fall at defendant's store, on grounds that said records were not shown to be admissible under the Uniform Business Records Act, Secs. 490.660-490.690. Proper disposition of the first assignment requires a statement of the evidence bearing upon both the issue of defendant's negligence and the issue of plaintiff's contributory negligence.

Defendant's store faces south at 653 East Big Bend Road. It occupies a one-story building and basement and the shed attached to the basement. The lot on which these premises are situate slopes sharply to the rear, causing the floor of the basement to be below the lot level and the entrance to the door leading into the rear of the store proper to be above the lot level. Entrance into the rear of the store proper may be had either by walking up an outside stairway to a rear entrance door or by entrance through the shed, into the basement and up an inside stairway from the basement to the store proper.

The shed is about '9 by 12 by 15 feet' in size. The outside entrance thereto is enclosed by an iron grill door, which is kept locked. A concrete runway inclines downward from the iron grill door to the basement door. On each side of that runway, a concrete wall extends upward from the floor to form a ledge extending horizontally a distance of about 12 feet from the iron grill door to the rear basement wall of the store. We are here concerned with the ledge and a platform on the left side of the runway as one enters through the iron grill door. That ledge is about eight inches wide. Due to the decline in the floor of the runway as it extends toward the basement door, the height of the ledge above the runway floor varies from one or two feet at its beginning to a height of 3 1/2 feet at the basement wall. A wooden plank 8 inches wide and two inches thick covers the top of the ledge. On the left edge of the ledge a 'back board' rises 6 to 8 inches above the ledge to the left the edge of a level platform which extends from the left edge of the ledge to the left wall of the shed, a distance of 40 to 44 inches.

Plaintiff, on direct examination, testified: On an afternoon in the latter part of April or the first part of May, 1957, he, as was his custom in the performance of his duties, drove his employer's truck to the rear of defendant's store, walked up the back stairs into the rear entrance of the store proper and reported to defendant and a 'lady employee' at the cash register that he had a delivery of soda to make and was told 'they' would open the shed and basement doors for him. Plaintiff left the store by the back door and 'wheeled' (by hand truck) the soda through the iron grill doorway, down the runway and through the basement door into the basement, both of which doors said female employee had in the meantime opened for him. After depositing the full cases in the basement, he came back through the basement door, walked up the runway incline to a point where he could readily step up onto the ledge and then walked back on the ledge to pick up two cases of emptly bottles from the point on the platform where they were usually kept adjacent to the edge of the ledge near its connection with the basement wall. As he picked up two cases of quart-size empty bottles, defendant's said employee, who stood behind him near the basement door, said to him that she had a few 'loose' empty bottles which she would like for him to take away. He did not turn around and never saw the bottles in her hand, but he heard them 'clinking together.' At that time, with a case of empty bottles in each hand, he started to turn left to walk along the ledge to a point where he could step from it to the floor of the runway. As the took a turning step, his left foot struck one of serval empty bottles which had been placed on the ledge after he had walked along it to pick up the cases of empties. This caused him to fall to the floor of the runway. Defendant's employee had not told him that she had placed them on the ledge and he did not see her do so. As he pulled himself up, she said, 'Oh, did you hurt yourself?' He made no report to anyone else at the store. He went up into the store, where he received cash in payment of his bill and, in turn, gave a receipt. He then finished the remainder of his day's work. He reported the fact of his fall to his employer's foreman. Thereafter, he continued to work regularly until May 31st. The first time that he saw a doctor (Dr. Robert Funsch) was September 9, 1957. That was done at the suggestion of his employer's 'insurance doctor.' Thereafter, at the request of his present counsel, he went to see another doctor.

On cross-examination, plaintiff testified: He did not look down to see where he was stepping when, with the cases of empties in his hands, he started to turn to leave the ledge. When he went upstairs after he fell, he saw defendant but did not mention his injuries to him. He was hurt, as he recalls, on a Thursday, but is unable to recall the exact date. He worked on Friday thereafter, all the following week and for four or five more weeks without seeking medical treatment. Although he made several deliveries to defendant's store after he was injured, he never mentioned his injuries to defendant.

The evidence in behalf of defendant was that during the months of April and May, 1957, defendant had two women in his employ, Mrs. Irene Koester and Mrs. Bessie Clausen, and a truck driver, James Nieder. When a soda deliveryman would come to the store, either defendant or Nieder would go down to the shed with him, unlock the shed and basement doors and, after he got his empty bottles, the shed and basement were again locked. To the best of defendant's knowledge, neither of the women employees ever went down to the shed to admit a deliveryman. He never saw plaintiff or any other soda deliveryman walk along the ledge to get empty bottles; it was not necessary to go upon and walk along the ledge to get them. The first information he received of plaintiff's being injured on his premises was when he received a letter from plaintiff's counsel, dated September 30, 1957. Mrs. Clausen testified: It was defendant's and Nieder's job to go down and admit deliverymen. She had no keys to the shed. She never went down and let plaintiff or any deliveryman into the shed in the year 1957 and knows nothing about plaintiff or anyone else falling or getting hurt in the shed. Neither plaintiff nor anyone else ever made any complaint to her that he was hurt down there. Neither did she ever take any empty bottles and put them on the ledge when plaintiff or any other person was picking up empty bottles or at any other time. Mrs. Koester testified to the same effect.

The manager of plaintiff's former employer, Canada Dry Bottling Company, called as a witness by plaintiff, testified on cross-examination that plaintiff never advised him and to the best to his knowledge never advised the company that he had fallen or had sustained injuries at defendant's store. The first knowledge he or the company had of such a claim was received from the Workmen's Compensation Commission...