Walsh v. Phillips

• Decision Date: 10 January 1966
• Docket Number: Nos. 51350,51351,No. 1,s. 51350,1
• Citation: 399 S.W.2d 123
• Parties: Marian Louise WALSH, a minor by her next friend, Robert F. Walsh, Respondent, v. Evelyn V. PHILLIPS, Appellant. Robert F. WALSH and Jeanne A. Walsh, Respondents, v. Evelyn V. PHILLIPS, Appellant
• Court: Missouri Supreme Court

Page 123

399 S.W.2d 123

Marian Louise WALSH, a minor by her next friend, Robert F.

Walsh, Respondent, v. Evelyn V. PHILLIPS, Appellant.

Robert F. WALSH and Jeanne A. Walsh, Respondents, v. Evelyn V. PHILLIPS, Appellant.

Nos. 51350, 51351.

Supreme Court of Missouri, Division No. 1.

Jan. 10, 1966.

Motion to Amend Opinion and for Rehearing or for Transfer to

Court En Banc Denied Feb. 4, 1966.

Opinion Modified on Court's Own Motion Feb. 14, 1966.

Wm. J. Hill, Kansas City, for respondents.

Henry G. Eager, Donald H. Loudon, Kansas City, Swanson, Midgley, Jones, Blackmar & Eager, Kansas City, of counsel, for appellant.

HENLEY, Judge.

These are actions (1) by a minor for damages of $100,000 for personal injuries, and, (2) by the minor's parents for damages of $25,000 for the loss of services and companionship of and medical expenses for their child. The cases were consolidated for purposes of trial by order of the court. Verdicts were for the defendant, pursuant to which the court entered judgment in each case. Plaintiffs' motions for new trial were sustained, the court assigning as reasons therefor (1) that the verdicts were contrary to the preponderance or greater weight of the evidence, and, (2) that the court had admitted evidence prejudicial to plaintiffs. Defendant appeals from the order sustaining plaintiffs' motions for new trial. The parties stipulated that the cases be consolidated for all purposes of appeal, and it was so ordered.

This court has jurisdiction because the amount in dispute, above stated, exceeds $15,000. Article V, Sec. 3, Constitution of Missouri, F.A.M.S.

Plaintiffs pleaded, and submitted their cases on, the res ipsa loquitur doctrine. Defendant contends that the evidence, viewed in the light most favorable to plaintiffs and with the benefit of all permissible inferences, does not make a submissible case under the doctrine; that, therefore, the verdicts and judgments in favor of defendant should be reinstated, notwithstanding that the court granted new trials upon discretionary grounds.

In determining whether the court properly exercised its discretion in awarding new trials on the grounds stated, we examine the record to ascertain whether there was sufficient substantial evidence to justify the submission of plaintiffs' cases to the jury; or to sustain verdicts for plaintiffs. Graves v. Atchison, T. & S. F. Ry. Co., 360 Mo. 167, 227 S.W.2d 660, 661; Walker v. Niemeyer, Mo., 386 S.W.2d 87, 92. In making this determination we view the evidence, including defendant's evidence wherein it may did plaintiffs' case, in the light most favorable to plaintiffs, giving them the benefit of all permissible inferences. Martin v. First National of Independence Co., Mo., 372 S.W.2d 919, 925; Walker v. Niemeyer, supra, 386 S.W.2d l. c. 89[1 2]; Shafer v. Southwestern 109. 109 .

Plaintiffs, a family of three consisting of the husband, wife and their 5 1/2-year-old daughter, were tenants of defendant, having rented an apartment from defendant (and defendant's husband, a party defendant who died prior to trial) at 3323 Campbell Street, Kansas City, Missouri, approximately two months prior to August 8, 1957, the place and date of the injury to Marian, the child. The apartment occupied by plaintiffs was on the first floor of a stone two-story one-family type residence building which had been converted into four apartments with two apartments on the first and two on the second floor. The front entrance to this apartment building was through a doorway opening into a large hallway from which entrance was made to the first floor apartments. In the hallway was a stairway leading to the second floor apartments. This front doorway was provided by defendant for and was used as a common entranceway by all tenants of the building. A part of this doorway was an ordinary wood screened door hung by hinges on what would be the left side of one leaving the premises. The door was so set into the recessed entrance that the outside edge or corner of the stone doorway would prevent the arc of the door, when opened, from being more than approximately 100 degrees. Controlling this screen door was an ordinary metal coil spring, one end of which was attached by a screw eye to the door jamb on the hinge side and the other end similarly attached to a horizontal board of the door at about the same height as the door handle. Outside this doorway was a porch, the floor level of which was about six to nine inches below the bottom of the floor and the hallway floor.

The other first floor apartment was occupied by the resident manager of the building, a Mrs. Mable Kinnunen, and her husband, Elmer. Both parents of Marian were employed: Mr. Walsh was a truck driver whose duties took him out of town; Mrs. Walsh worked in a gift shop about three blocks from the apartment. Mr. and Mrs. Walsh employed Mrs. Kinnunen as a baby-sitter to care for Marian during the hours of Mrs. Walsh's employment. Both parents and Mrs. Kinnunen describe Marian, at the age of 5 1/2, a normal, healthy, active child; a good child and obedient. Mrs. Kinnunen's duties as baby-sitter for Marian were to give her her meals, wash and iron her clothes, watch after her and give her her bath, 'just what a mother would do with a child.'

Late in the afternoon of August 8, 1957, Mrs. Kinnunen had given Marian her bath and they left the Kinnunen apartment to go through the hallway to the outside. Marian was running along ahead of her, 'as a child will.' While still 'running along', when Marian reached the screen door she turned her head and body to her left striking the door with her right side and posterior parts of her body so that her head was turned more or less facing Mrs. Kinnunen. In so striking the door it was pushed out to about an 100 degree angle, '* * * back pretty far * * * like a child will do that sometimes', * * * 'real far, too far', but it did not hit the stone wall. Walking along about twelve feet behind Marian, Mrs. Kinnunen called out cautioning the child against opening and going through the doorway in the manner described above; at the same instant Marian screamed. She had been struck in her right eye by a sharp object. Whether it was a sharp end of the spring itself that struck her eye, or the screw eye that had held an end of the spring to the door jamb, is unknown but it was one or the other. Later that evening defendant found the spring hanging from the door; she testified that the screw had 'pulled out' or 'came out' of the door jamb and that she had her maintenance man put the screw back in. Jack Lemmons, the maintenance man, testified that he does not recall the incident of Marian being hurt so that he cannot relate in point of time this incident and his going to the apartment house in August, 1957, where he found the screw eye pulled out of the door jamb. He said he put the screw eye back in the same hole; that the condition of the wood, the screw and the spring was good.

The only witnesses to the occurrence were Marian and Mrs. Kinnunen. Marian testified that she remembers Mrs. Kinnunen; that she remembers going to the hospital, but nothing else about the occurrence itself. Mr. and Mrs. Walsh and Mrs. Kinnunen indicated they had never paid particular attention to the doorway as they went in and out the building, and said they had never noticed anything wrong, unusual or dangerous about the door and its spring.

The sharp object that struck Marian penetrated a portion of her right eyeball and as a result of this injury she lost permanently the sight of that eye.

The doctrine of res ipsa loquitur applies only when (1) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (2) the instrumentality involved was under the management and control of defendant; and, (3) the defendant possesses superior knowledge or means of information as to the cause of the occurrence. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 559, 92 A.L.R. 641; Adam Hat Stores, Inc., Kansas City, Mo., 316 S.W.2d 594, 597.

In a res ipsa case the plaintiff has the burden of proving each factual element necessary to a submissible case. A factor bearing on the quantum of proof necessary to make a submissible res ipsa case is the duty owed the plaintiff by defendant. Shafer v. Southwestern Bell Telephone Co., supra, 295 S.W.2d l. c. 111. 'It is the well-settled law that where premises are left to several tenants, as in this case, and where such tenants use certain portions thereof in common, such as halls, stairways, entranceways, and the like, such portions of the premises are held to have been reserved by the landlord for the common use of the tenants and he is in control thereof and is liable for their maintenance, care, and reasonable safety.' Sherman v. Bobrecker, Mo., 322 S.W.2d 898, 902; Fitzpatrick v. Ford, Mo., 372 S.W.2d 844, 849; Gateway Chemical Company v. Groves, Mo., 338 S.W.2d 83.

Was this occurrence, that is, the screw eye pulling out of the door jamb, such as does not ordinarily happen if those in charge use due care? We think so. It has been said that 'the occurrence or 'thing' which speaks of negligence * * * is not the injury nor the act or omission of the defendant, nor is it the instrumentality. It is the unusual occurrence of theinstrumentality in the causal chain of events which connects the injury to the act or omission of the defendant.' Shafer v. Southwestern Bell Telephone Co., supra, 295 S.W.2d l. c. 114. Having provided for her tenants' use a door and its retaining spring, defendant's duty, in the exercise of due care, was to so install and maintain the spring and the screw by which it was attached to the doorway (of which it was a part) that its use by her tenants for the purpose for which it was intended would not cause the screw...