Wolfson v. Chelist

Decision Date19 April 1955
Docket NumberNo. 29110,29110
Citation278 S.W.2d 39
PartiesBelle WOLFSON (Plaintiff), Respondent, v. Leo CHELIST, Executor of the Estate of Bernice Chelist, Deceased (Defendant), Appellant.
CourtMissouri Court of Appeals

J. C. Jaeckel, and Moser, Marsalek, Carpenter, Cleary & Carter, St. Louis, for appellant.

James W. Jeans, and Hullverson & Richardson, St. Louis, for respondent.

MATTHEWS, Judge.

Plaintiff-respondent recovered a verdict and judgment in the trial court in the amount of $2,000 as damages for personal injuries sustained as the result of a fall upon premises owned and occupied by Bernice Chelist.

In due time defendant-appellant filed a motion for judgment in accordance with motions for a directed verdict offered at the close of plaintiff's case, and again at the conclusion of all the evidence, and, being overruled, the defendant prosecutes his appeal to this court.

This action was instituted on March 12, 1952, by the filing of plaintiff's petition naming Leo Chelist as the sole defendant; thereafter, on April 18, 1952, an amended petition was filed joining Bernice Chelist as a defendant. Bernice died on May 2, 1952; on January 30, 1953, Leo Chelist, as executor of the estate of Bernice Chelist, was substituted as a party defendant in the place and stead of said decedent, and on April 9, 1953, plaintiff's third amended petition was filed against Leo Chelist, and Leo Chelist as executor of the estate of Bernice Chelist, in which it was alleged: On or about August 11, 1951, while an invitee upon premises owned and occupied by defendants, and known as 1094 Roth Place, University City, Missouri, plaintiff was walking on the stairway at the rear of said premises and was caused to slip and fall as the result of the negligence and carelessness of the defendants in (a) depositing a greasy and slippery substance upon the steps which caused them to be dangerous and not reasonably safe, (b) failing to remove said substance, (c) failing to warn plaintiff of the presence of the substance which was not reasonably visible to persons using the steps, and (d) failing to exercise ordinary care to furnish plaintiff with a reasonably safe place to walk as the invitee of defendants.

Separate answers were filed admitting that Bernice Chelist owned and occupied the premises, and denying the allegations of negligence. On the day of the trial plaintiff dismissed as to the defendant Leo Chelist. In submitting the case the jury was instructed that it is the duty of every owner or occupant of premises to exercise ordinary care to keep premises in a reasonably safe condition for use of persons lawfully there by invitation; that the failure to exercise ordinary care constituted negligence; that if the jury found from the evidence that Bernice Chelist placed cat meat on the porch and thereby created a condition which was dangerous to persons using the steps or porch and that in so doing Mrs. Chelist failed to exercise ordinary care and was negligent, plaintiff was entitled to recover.

In uring that plaintiff failed to make a jury case, defendant contends that, because Bernice Chelist was dead at the time of the trial, the dead man's statute rendered plaintiff incompetent to testify as to occurrences prior to the death of Bernice, including of course the events surrounding plaintiff's fall, and that her testimony, admitted over objection, should not be considered in determining the sufficiency of the evidence to warrant submission of the case to the jury; that the deposition of Bernice Chelist taken by plaintiff was improperly admitted in evidence for the reason that the notice served upon defendant was insufficient and not in compliance with the statute.

Because of the attack against the admissibility of the deposition, we observe: On April 28, 1952, there was served upon attorneys for defendants at their office in the City of St. Louis, Missouri, a notice to take depositions on behalf of plaintiff at the home of Bernice Chelist, 1094 Roth Place, University City, Missouri, on the first day of May, 1952. Insisting that the notice was inadequate, the attorneys representing the defendants did not appear at the appointed time and place and participate in the taking of the deposition of Bernice Chelist, who, according to the record, was examined by plaintiff's counsel. On August 8, 1952, said deposition was filed in the clerk's office, and on the 14th day of August, 1952, defendant Leo Chelist filed his motion to suppress the deposition; on April 15, 1953, defendant Leo Chelist, executor of the estate of Bernice Chelist, deceased, filed his separate motion to suppress the deposition, and thereafter both motions to suppress were overruled.

The point is made that the notice of three days given prior to the taking of the deposition was inadequate, illegal and insufficient, and that nothing short of four days could constitute a legal notice under the existing circumstances and within the meaning of the statute. Specifically, it is argued that, 'Since the deposition was to be taken outside the City of St. Louis, where the notice was delivered, and since University City is less than fifty miles from the City of St. Louis, plaintiff was required to give four days' notice of the taking of said deposition, whereas, the time provided for in the notice was but three days, and, therefore, insufficient.', and that the phrase, for every fifty miles, means 'fifty miles or any portion thereof.'

We deem it advisable to consider and dispose of this contention before considering the facts bearing upon the status of plaintiff and the manner in which she sustained the injuries giving rise to this lawsuit, because obviously if the notice above referred to did not comply with the statute, the testimony of Bernice Chelist preserved by the deposition should not be considered, and the disposition of that point also bears upon the competency of plaintiff as a witness in her own behalf.

The statute, Section 492.200, V.A.M.S., which we must construe, provides:

'In all cases where notice is required by sections 492.080 to 492.400, the same shall be served at least three days before the day of taking the depositions, and one day additional for every fifty miles for the first three hundred miles, * * * of distance from the place of serving or setting up such notice, to the place of taking the depositions, * * *'.

Prior to 1883 it was provided that in addition to the minimum requirement of three days' notice, one day additional notice for every 25 miles was to be given for the first 300 miles. The 32nd General Assembly of Missouri amended the statute, Section 2142, R.S.Mo.1879, by increasing the distance for additional notice to 50 miles for the first 300 miles. Laws of Missouri 1883, page 83. Although the statute has been in effect for more than 72 years without change as to substance, the precise question has never been passed upon by the appellate courts of Missouri, at least able counsel refer us to no cause construing the statute, and our research discloses none.

It is fundamental that in constructing Section 492.200, our principal purpose is to ascertain and give effect to the intention of the Legislature, and if possible, 'the statutory intent should be determined from the words which have been used 'considering the language honestly and faithfully to ascertain its plain and rational meaning and to promote its object and manifest purpose.' City of St. Louis v. Senter Commission Co., 337 Mo. 238, 85 S.W.2d 21, 24; Artophone Corporation v. Coale, 345 Mo. 344, 133 S.W.2d 343, 347; Cummins v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W.2d 920, 925.' State ex inf. Rice ex rel. Allman v. Hawk, 360 Mo. 490, 228 S.W.2d 785, loc. cit. 788; Section 1.090, V.A.M.S.

We are not impressed with defendant's contention that in any case where the deposition is taken at a place other than where the notice is served, an additional day's notice must be given though the distance is less than 50 miles. Projecting the reasoning of defendant it would follow that if notice to take deposition was served on one side of the street separating the city from the county, and the deposition was taken in a building on the other side of the dividing street, the distance being 50 feet, that one additional day's notice would be required. This is so because 50 feet is a portion of 50 miles. This may be an extreme example, however, if the statute is susceptible to the construction defendant would have us adopt, the conclusion is inescapable that it would apply if the distance between the places was any part of 50 miles, whether 49 1/2 miles or 50 feet. We are not persuaded to believe that this was the intention of the Legislature. If that body had intended to require one day's additional notice for any portion of every 50 miles of distance from the place of serving or setting up the notice to the place of taking the deposition there is no apparent reason why it would not have so provided in clear and unequivocal terms. We are without authority to supply or insert words in a statute unless there is an omission plainly indicated, and the statute as written is incongruous or unintelligible and leads to absurd results. Span v. Jackson, Walker Coal & Mining Co., 322 Mo. 158, 16 S.W.2d 190; State ex rel. Cubb v. Thompson, 319 Mo. 492, 5 S.W.2d 57; neither do we have the right to change the meaning of a plain and unambiguous statute. Steggall v. Morris, 363 Mo. 1224, 258 S.W.2d 577.

Applying the principle that the language of a statute must be considered 'honestly and faithfully to ascertain its plain and rational meaning and to promote its object and manifest purpose', we hold that the statute means that if the deposition is taken within 50 miles from the place where the notice was served and set up, a notice of three days is sufficient, and that additional notice of one day is not required unless the distance between said points is at least 50 miles. Since we judicially...

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