Opinion
Opinion filed June 5, 1934.
1. — Appellate Practice — Demurrer to the Evidence — Effect Of — In View of Instructions Later Given for Plaintiff Submitting Case to Jury on Specific Negligence — The Petition Being a Res Ipsa Pleading of Negligence and the Proof in Plaintiff's Case Being Alleged to be Insufficient to Support the Specific Negligence Hypothesized in the Plaintiff's Instruction. Where the petition pleaded res ipsa and the answer was a general denial and evidence was offered of the hour and place plaster fell from the ceiling of defendant's store room onto the plaintiff customer, plaintiff has made a case under the res ipsa loquitur rule and defendant's demurrer to the evidence should be overruled and cannot be further used to test the sufficiency of the evidence after the close of the case when plaintiff's instruction submits the case to the jury in an hypothesis of specific negligence even though the proof in plaintiff's case of such specific negligence is questionable the demurrer is ruled upon the record as it was at the time the demurrer was offered.
2. — Trial — Practice — Demurrer to Evidence at Close of Plaintiff's Case — Must Be Stood on by Defendant — To Close Record — Where Defendant Proceeds, Plaintiff Entitled to Benefit of Defendant's Testimony Favorable to Her Case. When defendant does not stand on its motion for a directed verdict offered at the close of plaintiff's case and adduces evidence thereafter, the plaintiff is entitled to the benefit of any evidence thereafter adduced.
3. — Negligence — Storekeeper's Negligence Question for the Jury — Where Customer Hurt by Falling Plaster. In the light of the testimony, it becomes a question for the jury to determine whether or not the defendant, in the exercise of ordinary care to have that part of its place of business which was open to the public who came therein as customers, reasonably safe, could have discovered the condition of the ceiling which resulted in the falling of the plaster upon plaintiff in time to avoid its falling and injuring plaintiff and failed so to do.
4. — Appellate Practice — Instruction Given — Marked Refused — Its Delivery to the Jury Not Made a Point of Error in Motion for New Trial — Cannot After Judgment Term Passes Be Considered by Trial Court of Own Motion as Error. The only instruction given to the jury on plaintiff's measure of damages was through inadvertence marked refused and in the condition was taken by the jury to its room when deliberating on the verdict. The motion of plaintiff for a new trial from an adverse jury verdict did not complain of this situation. The court sustained the motion for new trial after several terms of court had intervened following the verdict and judgment; held that the court's action in giving the refused instruction, though probably erroneous, could not be the basis for granting the plaintiff a new trial since it was not complained of in the motion therefor.
5. — Appellate Practice — Exclusion of Evidence Of — Falling Plaster — On Prior Occasions — Knowledge of by Owner — Material to Issue in Case — Held Ground for Granting New Trial. Testimony that plaster had fallen on three different occasions prior to date plaintiff was struck at that place was offered and excluded by the trial court. The exclusion of this testimony was error as evidence of facts or occurrences happening at a prior time are admissible if relevant to the issue of owner's knowledge that plaster had fallen on previous occasions and if substantial similarity exists as to surrounding circumstances.
Appeal from the Circuit Court of City of St. Louis. — Hon. Arthur H. Bader, Judge.
AFFIRMED AND REMANDED.
Joseph N. Hassett and Ernest E. Baker for defendant.
(1) (a) Plaintiff failed to prove knowledge either actual or constructive on the part of the defendant of the defect which caused the white coating to fall and the entire evidence does not show such knowledge. Broughton v. S.S. Kresge Co., 26 S.W.2d 838; Cash v. Sonken Galamba Co., 17 S.W.2d 927; Scott v. Klines, Inc., 284 S.W. 831; Vogt v. Wurmb, 300 S.W. 278; Berberet v. Electric Park Amusement Co., 3 S.W.2d 1029. (b) Plaintiff submitted her case to the jury in an instruction requiring the jury to find specific negligence on defendant's part. She is bound by the theory adopted during the trial and therefore the burden is upon her to prove knowledge or notice of the defective condition that caused the white coat to fall. Torian v. Park View Amusement Co., 56 S.W. 134; Kincaid v. Birt, 29 S.W.2d 97. (2) (a) The testimony of witness Johnston about a telephone conversation with Dr. Rhodes was competent, relevant and material. Wolfe v. Mo. Pac. Ry. Co., 97 Mo. 473; 22 C.J. 193. (b) After witness Johnston had testified about the telephone conversation, plaintiff objected thereto, but did not move to strike evidence. The court did not commit error in failing to strike the evidence under these conditions. Chouteau v. Jupiter Iron Works, 94 Mo. 388; Cazzell v. Schofield, 8 S.W.2d 580. (3) (a) The trial court ruled correctly in sustaining objection to plaintiff's question as to whether plaster had fallen in infants' department prior to September 1, 1930. The question was too general, uncertain, unlimited and remote. Root v. Kans. City Southern Ry. Co., 195 Mo. 348, l.c. 375; Wing v. Smith, 190 Ill. App. 275. (b) Plaintiff's offer of proof that witness would testify that plaster had fallen three times prior to September 1, 1930, was insufficient in that it was too unlimited, uncertain and remote and did not show that the expected answer was material, relevant or competent or what fact plaintiff expected to prove by the answer. Defendant's objection to the offer of proof was properly sustained. Byam v. Kans. City Pub. Ser. Co., 41 S.W.2d 945; Root v. Kans. City Southern Ry. Co., 195 Mo. 348, l.c. 375; 3 C.J. 825, section 736. (c) Evidence that plaster fell subsequent to September 1, 1930, was incompetent, irrelevant and immaterial. The trial court properly sustained objection of defendant to that evidence. Hicks v. Veaths, 46 S.W.2d 604; Sparkman v. Jacksonville Coal Co., 251 S.W. 738. (d) Proof of accident or injury to witness Belle Finley Slater by falling plaster was not competent, relevant or material and defendant's objection thereto was properly sustained. Gable v. Kansas City, 148 Mo. 470. (e) Where plaintiff's evidence was stricken out or objection to question was sustained by trial court, and no offer of proof was made or exception saved and same evidence was later admitted and was before the jury, the ruling of the trial court does not constitute prejudicial error. Steffen v. S.W. Bell Tel. Co., 56 S.W.2d 47; Grubb v. Kans. City Pub. Ser. Co., 45 S.W.2d 71; Byam v. Kansas City Pub. Ser. Co., 41 S.W.2d 945. (4) (a) Where the defendant is a corporation and the evidence shows that the defendant is represented by an insurance company and plaintiff's injuries are such that they may incite feeling on the part of the jury correct cautionary instructions are proper. Aronovitz v. Arky, 219 S.W. 620; Huss v. Heydt Bakery Co., 210 Mo. 44, l.c. 56. (b) Defendant's instruction 6, 7 and 8 are the converse of plaintiff's instructions and correctly state the law. They could not have misled the jury. Instruction 5 correctly defined term "ordinary care" used in plaintiff's instructions. The trial court properly gave these instructions to the jury. Owen v. Chicago G.W. Ry., 47 S.W.2d 195; Am. Tob. Co. v. Schullenberg, 17 S.W.2d 557; Huss v. Heydt Bakery Co., 210 Mo. 620; Lang v. K.C.C.C. St. J. Ry., 285 S.W., l.c. 75. (c) The evidence of plaintiff and defendant conflicted sharply and instruction on credibility of witnesses was proper and correct. Wendling v. Bowden, 252 Mo. 647, l.c. 693; Crews v. Wilson, 281 S.W. 44. (d) The trial court erred in granting plaintiff a new trial because plaintiff was not entitled to recover under the evidence and the instructions submitted to the jury. Homuth v. Metro Street Ry., 129 Mo. 629; Thompson v. Granite Bituminous Co., 203 S.W. 496, 199 Mo. App. 356. (5) (a) The marking of plaintiff's instruction on the measure of damages "refused" and giving said instruction to the jury was not prejudicial error. Carpenter v. Burmeister, 273 S.W. 418; Gibson v. Wells, 258 S.W. 1; Heckfuss v. Amer. Packing Co., 224 S.W. 99; Vanbuskirk v. Railroad, 131 Mo. App. 357, l.c. 363. (b) Plaintiff did not preserve in the motion for new trial the objection she now makes to the marking of plaintiff's instruction on the measure of damages "refused" and said question is not before the appellate court for review. Szuch v. Ni-Sun Lines, 58 S.W.2d 473; Cooper v. Armour Co., 15 681 S.W.2d 946; Carpenter v. Burmeister, 273 S.W. 418; Weeland v. R.R., 144 Mo. App. 205; Garvey v. Piel, 43 S.W.2d 774; Crawford v. Amusement Co., 37 S.W.2d 581. (c) Defendant's instructions were proper under the issues submitted to the jury by plaintiff's instructions and defendant's instructions are proper even under a res ipsa loquitur case. Vogt v. Wurmb, 300 S.W. 278; McClosky v. Koplar, 46 S.W.2d 557. (6) Defendant's instruction No. 7 was proper and did not give undue prominence to defense. Dittmeier R.E. Co. v. Southern Surety Co., 289 S.W. 877, l.c. 886; Bollinger v. Curtis Mfg. Co., 249 S.W. 911; Kline v. Curtis Mfg. Co., 10 S.W.2d 323.
Barak T. Mattingly and Alva W. Hurt for respondent.
(1) (a) It was not an essential element of plaintiff's case that defendant have knowledge either actual or constructive of the defect in the plastering. The case came under the res ipsa loquitur rule and the pleadings and evidence were sufficient. The court did not commit error in refusing to give defendant's demurrer at the close of the whole case. Garfinkel v. Nugents, 25 S.W.2d 122; Snart v. White, 5 S.W.2d 668; Riecke v. Anheuser, 227 S.W. 631; Kean v. Piano Co., 227 S.W. 1091; McCloskey v. Koplar, 46 S.W.2d 557; Stewart v. Railway Co., 30 S.W.2d 1000. (b) If plaintiff was entitled to go to the jury on the res ipsa loquitur theory, the demurrer was properly overruled, regardless of plaintiff's instruction or any instructions that were afterwards given in the case. Benzel v. Anishanzlin, 297 S.W. 180; Schroeder v. Wells, 276 S.W. 60. (2) The trial court's action in granting plaintiff a new trial should be sustained for the following reasons: (a) The marking of plaintiff's instruction on the measure of damages "refused" and giving said instruction when so marked was prejudicial error. Williams v. Lynchburg T. L. Co. (Va.), 128 S.E. 732, 734. (b) The instructions did not conform to the pleadings and the evidence and were not within the purview both of the pleadings and the evidence. Telaneus v. Simpson, 12 S.W.2d 920, 929; State ex rel. v. Ellision, 270 Mo. 653; State ex rel. v. Daues, 314 Mo. 282; State ex rel. v. Allen, 282 S.W. 46, 52. (3) The court erred in giving defendant's instruction No. 7. Said instruction gave undue prominence to the defense. Causey v. Wittig, 11 S.W.2d 11, 15; Fantroy v. Schirmer, 296 S.W. 235, 238; Rankin v. Gough, 6 S.W.2d 640. (4) (a) As the trial court concluded the verdict was unjust it had a right, and it was its duty, to grant a new trial, and the trial court should be encouraged in the performance of that duty by this court. McCarty v. Transit Co., 192 Mo. 396, 401; Devine v. City, 257 Mo. 470, 475; Lorenze v. Railroad, 249 Mo. 182, 187. (b) If the action of the court in sustaining the motion for a new trial can be sustained on any ground then this court will not disturb the action of the trial court. Farris v. Pitts, 300 S.W. 840; Berkemeier v. Reller, 296 S.W. 739; Wallace State Bank v. Corn Exchange Bank, 282 S.W. 86; Rasch v. Ins. Co., 232 S.W. 183; Vaught v. Hex Brown Co., 289 S.W. 655, 657.
This is an action for damages for personal injuries alleged to have been sustained by plaintiff as the result of plaster falling from the ceiling while a customer in the store of the defendant. The verdict resulted in favor of the defendant and against the plaintiff. The trial court thereafter sustained plaintiff's motion for a new trial and the defendant in due course appeals.
Plaintiff's amended petition alleged negligence generally, and the defendant's answer thereto was a general denial. Upon trial of the case however, the instructions given at the plaintiff's request submitted her case to the jury upon an issue of specific negligence.
Plaintiff's testimony tended to prove that on September 1, 1930, accompanied by a friend, she went to the store of the defendant company and that while she was in the infants' wear department, located on the fifth floor of defendant's building, and was leaning over a table examining some infants' rompers, plaster fell from the ceiling immediately above where she was standing, striking her on the head and shoulders, and that as a result thereof she had a miscarriage some three weeks later.
The testimony adduced on behalf of the defendant tended to show that some plaster finish, about the thickness of a blotter, had fallen from the ceiling as testified to by plaintiff, but that none of the plaster had fallen on any customer.
Defendant here on appeal urges that the trial court erred in sustaining plaintiff's motion for new trial because plaintiff was not entitled to recover against defendant under the evidence on the issues submitted to the jury by plaintiff's instructions, and because defendant's demurrer to the evidence should have been sustained. This point is not well taken.
Appellant would have us review the action of the trial court in passing upon the demurrer as the case stood after it had been submitted to the jury upon the instructions. This we cannot do. The action on the demurrer must be judged as at the time when offered by defendant, namely, at the close of the case and prior to the giving of any instructions to the jury. Plaintiff's amended petition proceeded upon the theory of res ipsa loquitur, and the defendant's answer was a general denial, and the court necessarily tested the demurrer in light of these pleadings and the evidence adduced at the trial. It was admitted that the defendant maintained the store and premises, and that on the day in question, at the place and at the hour testified to by plaintiff, certain plaster fell from the ceiling. Plaintiff and another witness testified that some of the plaster fell upon plaintiff and caused her injury. In this state of the record plaintiff must be viewed as having made out a case under the res ipsa loquitur rule and the court properly overruled defendant's demurrer. [Kean v. Piano Co., 206 Mo. App. 170, 227 S.W. 1091, l.c. 1094; Garfinkel v. Dry Goods Co. (Mo. App.), 25 S.W.2d 122; Kuether v. Light Power Co., 220 Mo. App. 452, 276 S.W. 105; McCloskey v. Kopler (Mo.), 64 S.W.2d 557.]
As for the contention that plaintiff failed to make out a case for the jury upon the issue of specific negligence upon which she submitted her case, that point is not well taken. What the situation might have been had the defendant rested upon its demurrer offered at the close of plaintiff's case without adducing any evidence on this point, and in that situation the plaintiff had submitted her case to the jury upon the issue of the specific negligence, is not before us.
Where defendant does not stand on its motion for a directed verdict offered at the close of plaintiff's case, and adduces evidence thereafter, the plaintiff is entitled to the benefit of any evidence thereafter adduced. [Miller v. Construction Co. (Mo. App.), 46 S.W.2d 948; O'Connell v. Kansas City (Mo. App.), 58 S.W.2d 802; Nicholson v. Ry. Co. (Mo. App.), 51 S.W.2d 217.]
Defendant did adduce testimony which aided plaintiff in making a case for the jury upon specific negligence. Defendant adduced testimony favorable to the plaintiff's case sufficient to make the question as to whether or not the defendant had actual or constructive notice of the condition of the ceiling which caused the plaster to fall, in time thereafter to have remedied the same and have avoided injury to the plaintiff by the falling thereof. Defendant's witness, Thomas A. Blair, its building superintendent, testified it was part of his duties to watch for and to make any necessary repairs. As to plaster falling from ceilings in the building, he testified that "he has never seen anything fall on that floor that looked any heavier than a finishing coat and that is very thin. . . . It looks like it might be lime and sand or plaster of Paris. It is white or at least it was originally. It is painted on the outside. . . . That stuff falling, in their building and most any building, it only happens in the summer months and it is a case of expansion and contraction and oftentimes you will see a white coat come off and there will not be a single crack. At least it will be just like pop corn. It doesn't happen so often. If they had a damp day and warm, that finishing coat is thin and it absorbs moisture and that has got to expand; something has to happen. . . . From the first of September on he never got any complaint of any condition up there which he could find upon investigation what caused this white coat to come off. All he knows is that sometimes the white coat pops off. . . . He has his eyes on the walls and ceilings and places like that. He has a man named Green, a colored man, and he stays there until eleven o'clock and he goes over the main floor and the basement and then after that he goes over the other floors. They do that to guard against anything like that happening. During the summer months, Green inspects the plaster of the ceilings. That is the time they have trouble with the stuff popping off."
On cross-examination this witness stated that during hot weather a certain amount of plaster comes off the ceiling in almost any building.
In addition to this testimony we find that Alonzo Green, a witness for defendant, testified that as part of his duties "in the summer time, he inspects plastering in the building and relieves the two door men from eleven to one. He generally takes any plaster down that looks like it is cracked or anything wrong with it. He does not remember when he last inspected the ceiling on the fifth floor prior to September, 1930. He is on all floors most every day. The last time he inspected the plaster on the fifth floor prior to September 1, 1930, he did not notice anything wrong with the plaster on the ceiling. He doesn't know the date of his last inspection but he is there mostly once a day. He never noticed anything wrong with the plastering prior to September 1st. He saw the place where the white coating fell down. They picked around with a trowel to see that no loose plaster was left. . . ."
On cross-examination Green testified that "they have had quite a few instances of plastering falling in the store. He spends an hour and a half every day in the summer in the morning looking at plaster where plaster might fall, and a careful inspection will show in advance if the plaster is going to fall. Sometimes it just bursts right on down. . . . Sometimes all of a sudden it gets damp and falls down. . . . He doesn't know how large a piece of plastering fell in the infants' wear department September 1, 1930. He saw a place two or three feet square. It is repaired now. . . ."
It thus appears that the white coating of the plastered ceilings in defendant's building had fallen on frequent occasions; that the falling thereof occurred more often during the summer months, and defendant employed a man whose special duty it was, during the summer months, to examine the ceilings in the defendant's building to determine by inspection thereof whether there was any plaster likely to fall, and that "a careful inspection would show in advance if the plastering is going to fall;" that the last time the inspector had inspected the ceiling on the fifth floor at the place where plaintiff testified the plaster had fallen upon her, he had found the ceiling apparently in good condition, but he was not able to state when it was prior to September 1, 1930, that he had examined that part of the ceiling.
In light of this testimony it became a question for the jury to determine whether or not the defendant, in the exercise of ordinary care to have that part of its place of business which was open to the public who came therein as customers, reasonably safe, could have discovered the condition of the ceiling which resulted in the falling of the plastering upon plaintiff, in time to avoid its falling and injuring plaintiff, and failed to do so.
The record discloses that the trial court read instructions to the jury, two at the request of the plaintiff, seven at the request of the defendant, and one given by the court of its own motion, which instructions were taken by the jury with them when they retired to consider their verdict. It appears that instruction numbered two given at the request of plaintiff, which was the only instruction on the measure of damages, was stamped "refused 6/15/32" and under which appeared the signature of the trial judge. The stamping of this instruction "refused" over the signature of the trial judge is here urged by respondent as having been reversible error for which the granting of a new trial was warranted.
Our search has not brought to light any cases in this State where an error similar to this has been ruled. However in other jurisdictions the identical error has been held prejudicial. From the case of Terre Haute Ind. R.R. Co. v. F.O. Hybarger, 67 Ill. App. 480, we quote the following:
". . . Another objection urged is that the court marked as refused an instruction asked by defendant and read it to the jury, and that the instruction so read by the court and so marked refused was taken by the jury with the other instructions which were given. The instruction referred to was upon an important branch of the case — the duty of the plaintiff to exercise due care in approaching the crossing, and it is not denied that it correctly stated the law upon that point. So the question is, what should be said of this, probably inadvertent, action of the court in marking as refused a correct proposition of law and giving it so marked to the jury. The other instructions taken by the jury were all marked given, and if the jury took the trouble to examine the instructions they must have discovered that while the others were marked given, this was marked refused, and it is presumable, at least, that they understood the court did not approve of this instruction. No other instruction covering the same point was given.
"It is impossible to say that the case of the defendant was not prejudiced by this action of the court. It could not be so said unless it were known that the jury did not discover that the instruction was so marked. This is not known."
The court accordingly ruled the error prejudicial and reversed the judgment and remanded the cause. In a like situation such error was held prejudicial in Musser v. Ry. Co. (Nev.), 299 P. 1020. [See also Williams v. Traction Light Co. (Va.), 128 S.E. 732.]
Appellant calls our attention to the fact that this specific error was not set out in plaintiff's motion for new trial. This is true. Respondent seeks to overcome this objection under the rule that trial courts of general jurisdiction proceeding according to the course of the common law, have inherent control over every judgment during the term at which they were rendered, and a discretionary power to vacate the same for cause; and their action in the exercise of the discretion vested in them will not be disturbed by an appellate tribunal excepting for an abuse of such discretion or an arbitrary or oppressive exercise thereof. [Scott v. Smith, 135 Mo. 618, 34 S.W. 864; Roden v. Transit Co., 207 Mo. 392, 105 S.W. 1061; Copeland v. Ins. Co., 191 Mo. App. 435, 177 S.W. 820.] This rule, however, cannot be invoked in the instant case in that the record discloses that the trial court passed upon plaintiff's motion for new trial many months after the term at which the judgment had been rendered. It follows that the error in marking the damage instruction "refused" over the signature of the trial judge, upon the record before us, could not be invoked by the trial court as a ground for granting plaintiff a new trial, and plaintiff having failed to set this up in her motion for new trial, the point is not here for review.
The record does however disclose an error which in our view was prejudicial to the rights of the plaintiff and therefore a proper ground for granting plaintiff a new trial.
Belle Finley Slater, adduced on behalf of the defendant, testified that she was forelady of the infants' department located on the fifth floor, the department in which plaintiff testified that she had been injured by the falling of the plaster from the ceiling. She testified that she was present in the department when the first pieces of coating fell from the ceiling and that some ten minutes later there was a further falling of some additional pieces. During her cross-examination she was asked whether any plaster had fallen in this department prior to September 1, 1930. The defendant objected on the ground that the question was irrelevant and immaterial, which objection was sustained. Then out of the hearing of the jury plaintiff offered to prove by the witness that on three separate occasions prior to September 1, 1930, plaster had fallen from this ceiling in this department. Defendant made the same objection as before, which was again sustained. Plaintiff saved her exceptions.
The exclusion of this testimony was error. The rule is that evidence of facts or occurrences happening at a prior time are admissible if relevant to the issue and if a substantial similarity exists as to the surrounding conditions. [39 C.J., sec. 1234, p. 1021; Charlton v. Ry. Co., 200 Mo. 413, l.c. 442, 98 S.W. 529; Habenheimer v. City of St. Louis, 269 Mo. 92, l.c. 103, 189 S.W. 1160; Golden v. City of Clinton, 54 Mo. App. 100; Goble v. Kansas City, 148 Mo. 470, 50 S.W. 84.] Testimony to the effect that the plaster had fallen on prior occasions from the ceiling at or near the spot where plaintiff testified she was injured would not bring into the case any collateral issue. Such testimony would be material to the issue in hand, and would have a direct bearing on the question as to whether or not the defendant had fullfilled its duty to exercise ordinary care with reference to the inspection of the condition of the ceiling. [See Sargent v. Fuel Co., 37 Utah, 392, 108 P. 928; Ingalls v. Oil Co., 176 Cal. 128, 167 P. 867.] The rejection of this testimony, under the circumstances, was error prejudicial to the plaintiff and was proper ground for the trial court to sustain plaintiff's motion for new trial.
We are, consequently, of the opinion that we ought not disturb the ruling below. The order granting a new trial is therefore affirmed and the cause remanded.
Hostetter., P.J., and McCullen, J., concur.