Whealen v. St. Louis Soft Ball Ass'n

• Decision Date: 09 June 1947
• Docket Number: 40246
• Citation: 202 S.W.2d 891,356 Mo. 622
• Parties: Joseph Whealen v. St. Louis Soft Ball Association, Inc., a Corporation
• Court: Missouri Supreme Court

202 S.W.2d 891

356 Mo. 622

Joseph Whealen v. St. Louis Soft Ball Association, Inc., a Corporation

No. 40246

Supreme Court of Missouri

June 9, 1947

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

Affirmed.

Edmund W. Albright and Russell J. Horsefield for appellant.

(1) Under the terms of the written lease, in evidence, between the City of St. Louis and the respondent corporation, the respondent corporation was bound to maintain said park and playing field in a reasonably safe condition, not only during its use of the field, but for such times as it agreed to permit the city and its invitees to use said field, and the respondent corporation did not surrender possession and control of said field by simply permitting it to be used by others. (2) As part of the consideration for the lease the respondent corporation agreed to permit the use of the field for the playing off of municipal soft ball games at dates to be mutually agreed upon between respondent and the City of St. Louis. Therefore appellant was an invitee of the respondent corporation, to whom it owed the duty of exercising ordinary care to see that the playing field was in a reasonably safe condition for the purposes to which it would be put. Berberet v. Electric Park Amusement Co., 3 S.W.2d 1025; Miller v. Leo Peck Dry Goods Co., 78 S.W. 683; Hartman v. Muehlbock, 64 Mo.App. 565. (3) The evidence that the respondent corporation owned the drag over which appellant fell and other evidence was sufficient to present a jury question. Berberet v Electrical Park Amusement Co., 3 S.W.2d 1025; Brown v. Reorganization Inv. Co., 166 S.W.2d 476; Darlington v. Railway Exchange Bldg., 183 S.W.2d 101. (4) There was ample evidence to make it a jury question as to whether the respondent corporation did not create the dangerous condition which caused appellant's injury and allowed and permitted said dangerous condition to exist at the time it permitted appellant to use the playing field, and was liable as a creator of a dangerous condition, regardless of the question of actual possession at the time of appellant's injury. Martin v. City of St Joseph, 117 S.W. 94; Vaughn v. Mo. Power & Light Co., 89 S.W.2d 699; Brown v. City of Marshall, 71 S.W.2d 856; Bollinger v. Mungle, 175 S.W. 912; Haynor v. Excelsior Springs, 108 S.W. 581; Brown v. St. Louis-S.F. Railroad Co., 268 S.W. 678.

Theodore C. Eggers and J. A. Gochenour for respondent.

(1) The Court of Appeals had no jurisdiction of this cause. The appellant's failure to include the judgment appealed from in the transcript certified to the appellate court is fatal and said appeal should have been dismissed. Bales v. Jefferson City Lines, 192 S.W.2d 28; Evans v. St. Louis, 198 S.W.2d 9; Crabtree v. Bankers Life Ins. Co., 128 S.W.2d 1089. (2) The contract mentioned in plaintiff's evidence is not between the plaintiff and defendant, but a contract between the defendant and a third party. The plaintiff having no privity in said contract cannot use said contract as a basis of his cause of action. Bissell v. Roden, 34 Mo. 63; Carpenter v. Reliance Realty Co., 77 S.W. 1004, 103 Mo.App. 480. (3) The plaintiff was not an invitee of the defendant at the time of his injury in the ball park in question. Clark v. Chase Hotel Co., 74 S.W.2d 498; Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 180; Boneau v. Swift & Company, 66 S.W.2d 172; Stevenson v. Kansas City So. Ry. Co., 159 S.W.2d 260. (4) There is a complete failure of evidence substantiating the contention in plaintiff's Statement, Brief and Argument that plaintiff tripped or fell over a drag as recited in plaintiff's Brief and Argument. (5) Under the terms of the contract introduced by plaintiff whereby the City granted defendant permission to use the land in question for a ball park, it is specified that this defendant had possession of said park only certain hours as provided in the contract, and that the City reserved unto itself complete use and control of said ball park, and that at the time of injury to plaintiff, the City of St. Louis or its designated agents, were in complete and sole charge and operation of said park. Under this set of facts there was no duty of defendant to protect or warn plaintiff. Burton v. Rothschild, 173 S.W.2d 681; King v. Ringling Brothers, 130 S.W. 484; Clark v. Chase Hotel Co., 74 S.W.2d 498; Allen v. Cartizer, 208 S.W. 102.

OPINION

Conkling, J.

This case came here on transfer by the St. Louis Court of Appeals, because it deemed its opinion herein (198 S.W.2d 371) to be in conflict with the opinion of the Kansas City Court of Appeals in Bales v. Jefferson City Lines, 192 S.W.2d 27.

Appellant's action was for damages for personal injuries sustained while playing soft ball. At the close of plaintiff's evidence the trial court sustained defendant's motion for a directed verdict. The verdict was signed by a juror and entered of record. Judgment for defendant was entered of record thereon. After proper procedural steps plaintiff appealed to the St. Louis Court of Appeals.

After the case had been briefed, argued and submitted in that Court, it was discovered that the transcript of the record was defective in that it did not contain the judgment entered in the trial court upon the directed verdict. Rule 1.04(a). Pursuant to the authority of Rule 1.03, the Court of Appeals, in the exercise of its discretion, and of its own motion, required the clerk of the trial court to send up a certified copy of the judgment entered in the cause in the trial court. Rule 1.03 provides ". . . The court may of its own motion, at any time, require the clerk of the trial court to send up a complete transcript or any portion thereof . . ." The Court of Appeals in the further exercise of its discretion ordered that the judgment so received be made a part of the transcript, and that the same be considered as though originally contained in the transcript. The judgment was a final judgment in favor of defendant.

Respondent filed a motion to dismiss the appeal on the ground that the transcript as originally filed in the Appellate Court failed to include the judgment. The Court of Appeals overruled that motion in its opinion. The appeal was then disposed of by the Court of Appeals on the merits.

The transcript of the record filed in the Court of Appeals, and now filed here contained a copy of appellant's notice of appeal "from a judgment against him (plaintiff) and in favor of defendant . . . on December 6, 1945." Upon the filing in the Court of Appeals on February 15, 1946 of the original "Notice of Appeal" the appeal in the case became "effective." The filing of such notice was the only requirement necessary to invoke appellate jurisdiction. Weller v. Hayes Truck Lines, 355 Mo. 695, 197 S.W.2d 657, 660. Laws Mo. 1943, page 353, Sec. 129, Mo. R.S.A. sec. 847.129. Section 129 of the Code also provides that "after a timely filing of such notice of appeal, failure of the appellant to take any of the further steps to secure the review of the judgment or order appealed from does not affect the validity of the appeal, but is ground for such action as the appellate court deems appropriate, which may include dismissal of the appeal." The transcript as originally filed showed that there was a trial, that testimony was heard and that the trial court directed a verdict for defendant. In the exercise of its discretion, the Court of Appeals was justified in ordering a certified copy of the judgment to be sent up. There was before the Court of Appeals sufficient affirmative information certified by the clerk of the trial court to cause that Court to believe in the actual existence of a final appealable judgment below. However, there was no duty upon the Court of Appeals to have thus completed the transcript by requiring the judgment to be sent up.

Under Rule 1.03 permission is given and any appellate court in Missouri is vested with a wide discretion to require or not to require the clerk of the trial court to send up any papers, documents or exhibits in any cause then pending on appeal in such appellate court. Such discretion the appellate court may exercise to send for any portion of the transcript inadvertently omitted, and thus prevent a miscarriage of justice. It may in the exercise of such discretion refuse and decline to make any requirement whatever of the clerk of the trial court. The appellate court may, in its discretion, refuse to permit counsel to supply the deficiency in the transcript out of time as did the Court of Appeals in Bales v. Jefferson City Lines, supra. However, if the appellate court having exercised its discretion to call upon the clerk of the trial court to supply a deficiency in the transcript, and such omission having been supplied by such clerk, or supplied by counsel with the Court's permission, then has before it a "full transcript", the appellate court then has sufficient upon which to proceed upon the merits of the appeal.

It should be observed that the view here expressed is no invitation to careless...