Van Brock v. First National Bank

• Decision Date: 13 March 1942
• Docket Number: No. 37818.,37818.
• Citation: 161 S.W.2d 258
• Parties: FLORENCE VAN BROCK v. FIRST NATIONAL BANK in St. Louis, a Corporation, Appellant.
• Court: Missouri Supreme Court

161 S.W.2d 258

FLORENCE VAN BROCK v. FIRST NATIONAL BANK in St. Louis, a Corporation, Appellant.

No. 37818.

Supreme Court of Missouri.

Division Two, March 13, 1942.

Rehearing Denied, May 5, 1942.

Motion to Transfer to Banc Denied, May 5, 1942.

Appeal from Circuit Court of City of St. Louis. — Hon. Robert J. Kirkwood, Judge.

AFFIRMED.

Jones, Hocker, Gladney & Grand, Web A. Welker and Vincent L. Boisaubin for appellant.

(1) An invitee cannot recover for injuries without proof of actual negligence. Cluett v. Union Electric Light & Power Co., 220 S.W. 865; Achter v. Sears, Roebuck & Co., 105 S.W. (2d) 959. (2) A case of liability cannot be made when the finding is based upon guesswork, speculation or conjecture. And an ultimate fact cannot be established by basing inference upon inference. State ex rel. Trading Post v. Shain, 342 Mo. 588, 116 S.W. (2d) 99; Fryer v. St. L.-S.F.R. Co., 333 Mo. 740, 63 S.W. (2d) 47; Robinson v. C. & E.I. Ry. Co., 64 S.W. (2d) 660, 334 Mo. 81; Pape v. Aetna Casualty & Surety Co., 150 S.W. (2d) 569; Phillips v. Travelers Ins. Co., 288 Mo. 175, 231 S.W. 947; Cluett v. Union E.L. & P. Co., 220 S.W. 865; Achter v. Sears, Roebuck & Co., 105 S.W. (2d) 959. (3) It is not negligence to have and maintain polished or smooth or slick floors. Ilgenfritz v. Mo. P. & L. Co., 101 S.W. (2d) 723; Cluett v. Union E.L. & P. Co., 220 S.W. 865; Stoll v. First Natl. Bank of Independence, 134 S.W. (2d) 97.

Paul H. Koenig and Chelsea O. Inman for respondent.

(1) In passing upon the question as to whether there was substantial evidence to support the verdict for plaintiff this court must accept as true the following: (a) Defendant cleaned its tile floor with an emulsion of water and soap powder. (b) The cleaning was completed about 5 o'clock in the morning of the day plaintiff fell. (c) Plaintiff slipped on a thick soapy emulsion and was thereby caused to fall. (d) The jury necessarily drew the inference from the foregoing facts that the substance upon which plaintiff slipped was some of the soapy emulsion used by defendant and permitted by defendant to remain in an unusual and dangerous quantity on the floor where plaintiff slipped since about 5 o'clock in the morning. (2) The sole question for this court to determine is whether men of average intelligence could reasonably draw the inference (point 1 [d]) from the established facts (point 1 [a, b, and c]). If the question is answered in the affirmative, then the judgment should be affirmed even though the court finds that the jury might just as readily have drawn other or contrary inferences. Cech v. Chemical Co., 323 Mo. 601, 20 S.W. (2d) 509; Settle v. Railroad Co., 127 Mo. 336, 30 S.W. 125; Duerst v. St. Louis Stamping Co., 163 Mo. 607, 63 S.W. 827. The evidence justified the jury in drawing this inference. Savona v. May Dept. Stores Co., 71 S.W. (2d) 157; Busby v. Southwestern Bell Tel. Co., 287 S.W. 434; Petera v. Railway Exchange Bldg., 42 S.W. (2d) 947; James v. Bailey Reynolds Co., 30 S.W. (2d) 118; Stewart v. Laclede Gas Light Co., 241 S.W. 909; Settle v. St. L.-S.F. Ry. Co., 127 Mo. 336; Cole v. Uhlmann Grain Co., 100 S.W. (2d) 311; Moore v. Great Atl. Tea Co., 92 S.W. (2d) 912. (3) Since the trial court overruled defendant's demurrer to the evidence and the jury found in favor of the plaintiff, this court will not disturb that verdict unless the facts in evidence, together with all the inferences which the jury must be held to have drawn therefrom, are so conclusively insufficient to support the verdict as to leave no room for reasonable minds to differ. Young v. Wheelock, 333 Mo. 992, 64 S.W. (2d) 950; Cech v. Chemical Co., 323 Mo. 601, 20 S.W. (2d) 509. (4) In passing on the demurrer to the evidence the court is required to make every inference of fact in favor of the plaintiff, from all the evidence in the case, which the jury might with any degree of propriety have inferred in plaintiff's favor. The court is not at liberty to make inferences of fact in favor of defendant to countervail or overthrow either presumptions of law or inferences of fact in plaintiff's favor. This would be usurping the province of the jury. Cech v. Chemical Co., 323 Mo. 601, 20 S.W. (2d) 509; Buesching v. St. Louis Gas Light Co., 73 Mo. 219; Stewart v. Laclede Gas Light Co., 241 S.W. 909; Troll v. Drayage Co., 254 Mo. 332, 162 S.W. 185. (5) The question of negligence is for the jury not only where the evidence is conflicting but where, the facts being undisputed, different minds might reasonably draw different inferences from it. In this situation the case must be submitted to the jury unless the only inferences to be drawn from the evidence are incontrovertibly against the plaintiff. Cech v. Chemical Co., 323 Mo. 601, 20 S.W. (2d) 509; Troll v. Drayage Co., 254 Mo. 332, 162 S.W. 185; Buesching v. St. Louis Gas Light Co., 73 Mo. 219. (6) While this court has a right to determine as a matter of law whether there is substantial evidence to sustain an issue of fact, it cannot go further and determine whether the weight of the evidence is in favor or against the mooted fact. That is the sole province of the jury. Clark v. Bridge Co., 324 Mo. 544, 24 S.W. (2d) 143; Young v. Wheelock, 333 Mo. 992, 64 S.W. (2d) 950. (7) Plaintiff's evidence need not exclude the possibility of a cause for which defendant is not liable. It is sufficient to make a submissible case if there are sufficient facts, together with reasonable inferences to be drawn from them, to establish a cause for which the defendant is liable. Cech v. Chemical Co., 323 Mo. 601, 20 S.W. (2d) 509; Stewart v. Laclede Gas Light Co., 241 S.W. 909; Duerst v. St. Louis Stamping Co., 163 Mo. 607, 63 S.W. 827; Settle v. Railroad Co., 127 Mo. 336, 30 S.W. 125. "It often occurs in the trial of a lawsuit that the triers of fact must reach a conclusion from reasoning upon probabilities without positive proof." Duerst v. St. Louis Stamping Co., supra. (8) In determining whether or not the trial court committed error in refusing to give defendant's peremptory instruction this court is required to take plaintiff's evidence as true, if not entirely unreasonable or opposed to physical laws, and to give plaintiff the benefit of all favorable inferences arising from all the evidence, disregarding all defendant's evidence which conflicts therewith or fails to strengthen plaintiff's case. Trower v. M., K. & T.R. Co., 149 S.W. (2d) 792; Young v. Wheelock, 333 Mo. 992, 1001, 64 S.W. (2d) 950, certiorari denied 296 U.S. 676, 54 Sup. Ct. 527. (9) Plaintiff's case was not made by piling inference upon inference. However, the rule against pyramiding of inferences is not an inflexible one. Even though one or more inferences intervene between the factual premises and the conclusion, such conclusion may not be ignored. The underlying question is whether the conclusion hypothesized can fairly be drawn from the proven facts by reasonably intelligent minds. Wills v. Berberich's Delivery Co., 134 S.W. (2d) 125; Krug v. Mutual Life Ins. Co. of N.Y., 149 S.W. (2d) 393. (10) It was negligence to allow an unusual amount of the cleaning emulsion on the floor. Ilgenfritz v. Mo. Power & Light Co., 340 Mo. 648, 101 S.W. (2d) 723, 728; Phelps v. Montgomery Ward & Co., 231 Mo. App. 595, 107 S.W. (2d) 939.

BARRETT, C.

The plaintiff, Florence Van Brock, recovered a judgment of $11,000.00 against the First National Bank of St. Louis for personal injuries.

The plaintiff claimed that while she was an invitee in the defendant's bank she was caused to slip and fall by reason of negligence on the part of the bank or its employees. The theory of her case, as stated in her petition and as hypothesized in her instructions, is that "the defendant was negligent in failing to exercise ordinary care to have, keep and maintain the tile floor... in a reasonably safe condition for the use and convenience of its customers, patrons, invitees ... in that water, soap and other slippery substances were allowed, suffered and permitted to collect, accumulate, and remain on the floor ... which condition rendered the floor ... slick and slippery ... and that defendant knew, or by the exercise of ordinary care could have known of said condition ..." [2 Restatement, Law of Torts, sec. 343; 38 Am. Jur., secs. 96-102, 131-133; 118 A.L.R. 425; 100 A.L.R. 710; 58 A.L.R. 136; 46 A.L.R. 1111; 43 A.L.R. 866; 33 A.L.R. 181.]

The floor of the First National Bank in St. Louis is described as being of tile or marble tile. Every business day, under the direction of the building superintendent, the floor and corridors are cleaned between midnight and 4:30 or 5:00 o'clock in the morning. Water and a cleaning agent, a powdered detergent bearing the trade name of "Wyandotte," are mixed in the proportion of three pounds of Wyandotte to twenty or thirty gallons of water. The mixture is stirred with a stick and placed in an electric washing machine. As the machine is pushed across the floor its rotating brushes scrub with the mixture. Other employees follow the machine and mop the floor dry with mops. According to the plaintiff's evidence Wyandotte powder contained a large amount of soap, soda ash and friable grit, insoluble in water. When wet it forms a jelly or lubricant and is slippery. It is whitish gray when dry. According to the defendant's chemical analysis Wyandotte consists of eighty per cent inert material which looks like volcanic ash and 5:14 per cent soap and the balance a mixture of soda ash and sodium bicarbonate. The defendant's evidence tended to show its qualities were of an abrasive nature and not lubricating. Its tests showed there was very little difference in the slipperiness of a marble floor cleaned with Wyandotte detergent and a marble floor cleaned with plain water.

The plaintiff and her mother had a joint account in the bank. With a neighbor, Mrs. Milick, they went to the bank on November 24, 1936, for the purpose of having the mother's will typed. After...