*1 Kroger Grocery & Defendant, Roetheli, Frank DeMoulin Leo 39390. 189 Baking Corporation, Appellant. Company, No. (2d) 562. W. S. September Two, 4, 1945. Division Overruled, October 1945. Rehearing Banc Transfer to or to Motion *2 Wayne Ely appellant.
Everett Richardson respondent; Hullverson Orville of counsel.
431 against judgment recovered a .BOHLING, C. Leo DeMoulin $16,750 a for Kroger Grocery Bailing corporation, & Company, fell in one of the when personal injuries account suffered on We think Kroger has Kroger Company appealed. stores. except remittitur.
judgment stand, should for a His Packing Company. employed by Plaintiff American was had been retail delivery of meat to He duties embraced stores. store Baking Company’s making Kroger Grocery. deliveries to & years. De- Missouri, street, for two Louis, at North Sarah St. Kroger a butcher hanging scale there were made liveries to through pass weigh Entering he would the meat. the rear door twenty-five room, long about six feet in width narrow length, used for storage passageway, feet reach’the. space glass by house- jars cans or brought in tin store
scale. Grease 8:30 and Between near scale. kept in wooden box wives grocery but before 16, 1943, and after the September. 9:00 A. m. carrying opened day, plaintiff for the shop had been the butcher pounds, approximately beef, weighing hind-quarter of-a *7 he delivery and as along to the scale passageway for shoulder the his The grease floor and fell. on on the slipped' he some neared the scale grease landed on stomach. The extended hind-quarter the beef his of long plain- and by wide three feet space approximately a two feet over ‘‘ ’ He on of his shoes. pants his and sides grease all over’ the tiff had holding the from, e., the box grease had come i. noticed the where tipped had like of the containers it looked one containers, and said brought in the discussion of facts will be out over. Additional specific issues. Kroger Company judgment must be reversed.
The contends the for charge general "manager Frank Roetheli was in of the store as and joined Kroger Company Kroger Company. Plaintiff the the jury of the exonerated Roetheli Roetheli as defendants. The verdict negligence; the finding Kroger Company guilty the of and while Kroger (stressing Mc Company contends under the that authorities Ry. 98 W. Chicago, Co., 347, 358, I. & P. 200 S. Ginnis v. R. Mo. 656, Rep. (N. S.) 880, 9 A. 9 118 590, 592, L. R. Ann. Cas. Am. St. against 661*) may it not Coun the verdict is inconsistent and stand. theory in plaintiff proceeded upon the that Roetheli was sel states ' charge Kroger Kroger Company; the “defendants” —the the that that, negligence; Company guilty and Roetheli—were of concurrent only Kroger employee made, Company on Roetheli was the record the floor; kny opportunity remedy who had the the that to condition of Kroger of Company, all, if liable at be liable because must negligent, inaction, that, were Roetheli’s action or and if Roetheli not Kroger negligent Company could not be the record made. Kroger Grocery We think this contention Devine v. stands refuted in Baking Co., 621, 813, & 349 Mo. 162 816 S. W. 2d 631[1-3]„ [1-13]. injured by Kroger Devine fall a store. in opinion Mrs. was- a at The unnecessary upon that case discusses the authorities here. It is relied repeat to there said. purposes what Sufficient unto the instant recognizes opinion application of the doctrine contended for by Kroger Company where liability- employer of the falls within respondeat superior; applicable' the rule' of but it is not where holds legal of manager duties on the one hand and its owner Mo. T. Hamilton-Brown Shoe 907[12, 25]. Lines, *Othér authorities & F. 467, S. 337 488 Mo. Ry. Co., [12], 196, 79 S. W. 2d 200 338 Mo. cited [2], Co., 85 are: 463, 334 Mo. 447, S. 468 W. Stith 457 2d [1], [24] 517, 529[5, 12], v. 602, 92 J. J. ; Ruehling 603[2]; S. W. Newberry 2d Stoutimore v. 658, Pickwick-Greyhound Co. S. [1]; (Banc), W. Atchison, Brunk v. 2d 336 differ, liability employer of or in such instances other the master irrespective arising respondeat superior. of the doctrine of opinion possessor sets out the of the of land to business in duties Kroger’s vitees; liability states that comes within substantive rules upon agency; of law and does not rest law tort the substantive delegate duty occupants owners and land cannot their keep premises reasonably per in safe avoid condition so as to liability; that, irrespective manager’s exoneration, sonal and of the Kroger Company duty respondent “owed a to the maintain injure store such a manner as not her reason of a hole the entrance of which it knew or should known which was have type may unknown to her. It is which be not of tort sustained solely upon finding manager negligence part its on the agent.” some other (l. respectively). c. 633[2], 818[8-12] Kroger Company distin- points to two factual differences to guish the issue; cases on the instant i. e.: That in the Devine case floor defect,- in- years, construction which had for five existed volved, looking and that a clerk testified his duties after embraced *8 safety the preventing of the floor injured. and customers being any Kroger in the instant employee evidence grease case was that who saw supposed and, on the floor up; developed was to clean it in as greater ruling detail infra in a jury might the issue of case made, the properly infer Kroger that employee some subordinate was the cause being the grease of floor, occurring storage on the the accident in the room and passageway establishing duty and the it a evidence any Kroger employee of charge to grease take of the cans of and place them there for picked man up week, the who them twice or that Kroger employee some subordinate failed properly to clean the night store the before. In Kroger the the Company’s circumstances liability necessarily was not limited the to action or of nonaction Error is point not disclosed and Roetheli. the is plain- ruled for the tiff. Kroger Company claims demurrer the to the evidence
should have been sustained; because: 1. The record does not disclose Kroger that Company timely had notice, actual or constructive, of presence grease. the the 2. Plaintiff guilty was contributory negligence. may
There be number of factual finding situations warranting a grease of due by notice. The kept Kroger was Company the in con- in a tainers box near the in a scales storage room used for purposes and a passageway. Roetheli testified that grease the came from the box; box, he that removed the which “all was greasy”; and that several, there were he did not know how many, grease cans in the box at time. Plaintiff grease the said the had flowed over an area of approximately two three feet on the floor. Roetheli closed the store morning day opened plaintiff and it 8:05 on the was before about testimony spot hang
injured passed up and over the to his coat. His Kroger Company employees handled only an inference that warranted ‘‘ ’’ grease storage exception this with of the bone man space, space open to trad who called for it twice week. This was not grease ing nature would not public. There was that of this evidence water, much In circumstances flow but flowed slower. these like carelessly jury Kroger Company employee might infer that some charged grease floor knew with caused the to be on the and or was knowledge length it for a of time the floor sufficient was injury. They have Roetheli’s tes plaintiff’s did not to believe avoid he any grease injury, or, if timony that did not see after the until grease floor. Wood v. it, not see believe not Consult did Walgreen Drug Stores, (Mo. App.), 536[5, Inc. 125 S. W. 2d 6], Kroger citing cases; Grocery Baking (Mo. App.), & Moone Co. S. W. 2d Roetheli was in the front of the 628, 631 [4] building when plaintiff fell immediately. Plaintiff testified Roetheli and went to his assistance something to effect feet at that time assisted him to his said something day before grease up been cleaned should have forgotten Plaintiff being neglectful; been about. about it had exactly give not Roetheli’s words and testified Roetheli did not could Kroger say Company him. The claims that as to it this was that to against hearsay testimony, insufficient to make a it. We are not case right plaintiff with to adduce evidence these concerned against Roetheli statements attributed to Roetheli as either or Kroger testimony objection or Company. This was admitted without request jury that the be instructed not consider motion strike or any any ground their consideration of it in manner on it to restrict probative circumstances its natural effect In these whatsoever. “ jury as ‘a rule of invoked of the evidence not the consideration *9 ” Co., App. A. Driemeier M. 223 Mo. Munton v. S. & is waived.’ 63[3]; eeley 1142, 22 348 1131, 61, Kurn, W. 2d v. Mo. 1124, S. St Co., 212, Schaper Roberts v. 157 S. W. 2d Stores 1144[3], 318 Mo. 213[4]; 1197, 241, 3 W. Madison Taxi 1190, S. 2d v. Owners 244[8].; 106, (Mo. App.), 148 S. W. 2d Inferences from Ass’n 108[5, 6]. day grease on the-floor that was before and these statements the the forgetfulness negligence proper. or were was not removed because of give plaintiff did not Roetheli’s exact words did not That testimony. Ray Hooper (Mo. v. 204 destroy App.), the of the effect may given impression Roetheli have the that he was 31 S. W. [6]. directly was plaintiff voicing spon to but necessarily speaking his not existing conditions. Plaintiff’s to narrative of reaction the taneous contradictory not was self-destructive. statements Roetheli’s guilty contributory plaintiff negli that was of contention might gence any- law he testified one find most a matter of because as
435 thing on floor that it so dark he could not floor and was see the the objects very well or small on the floor is without merit. Plaintiff had years. It delivering meat to this store for was been two not estab- morning lished that the differed on the of his apparent situation regularly proceeded injury from Roetheli over encountered. He space a few before under like conditions. testified the minutes light as he thought enough plaintiff proceed it was to negligence for the proceeding. Any contributory was was issue of jury. directing
Plaintiff factual verdict instructions. submitted two Kroger against 1 Roetheli and the Instruction authorized a verdict against Kroger 2 Company. Instruction authorized verdict the identity only. Kroger complains the of Company Company of stating instructions, language the these facts submitted and of the against prominence the facts repetition gave this the facts undue to of were far as this issue it and that two instructions inconsistent. So the may submit identical is concerned the two instructions be considered to language with viz.: exception, in almost identical this fact situations Kroger operating the requiring finding Company After was that the ' ‘ Roetheli required instruction 1 and that defendant question, store store,” required in manager finding by its in the whereas was the Kroger a retail Company "operating was the struction agents through than grocery its servants.” Other store and with above the remainder of the instruction to harmonize cause introductory respective paragraph indicated differences findings of like predicated plaintiff’s upon verdict instructions Kroger facts; proceeding theory Roetheli and the instruction on the known in due time Company knew or have of condition should do whereas instruction plaintiff so, have saved et cetera and failed to Kroger to the proceeded theory on the the fault was attributable agents and through act of some of its Company the act or failure to Baking authority Kroger Grocery & servants. Under Devine lodged subject attacks Company, supra, instructions are not to the Kroger against pointed out that them. We have hereinbefore being solely dependent upon Roetheli Company’s liability not right liability, also Roetheli’s liable. Plaintiff had submit negligence also Kroger liability Roetheli, for the Company’s Kroger negligence other Kroger Company’s liability for some con employee. submissions are not inconsistent. No Company Such facts were constitutive ele tention is made that submitted not plaintiff’s precluded of action. Plaintiffs not be ments of cause should submitting identity causes of action because of the of certain from In repetition the circumstances before us the involved facts. plaintiff’s against respective de these constitutive facts of case *10 ' prominence True, give not undue to the facts involved. fendants did might might take different form. It be better prac- the submission 436 to
tice cover factual matters in one instruction but it was not the error for permit the trial court submission. cases to the instant by Kroger 434, cited Company (State ex rel. Mo. Shain, v. 340 440, 101 1, Berberich, 831, S. W. 2d Freeman v. 332 837 Mo. 4[7],; 60 Co., S. W. 2d 335 393, Hencke v. St. Louis & H. Rd. [4], 395[4]; 393, City Mo. 798, 398 72 S. 800 v. W. 2d and Rice Jefferson [5], [3], B. & 746, being illustrative) Tr. Co. are (Mo.), 216 S. W. 751 [1], readily differentiated on the facts.
An jury employee instruction that an is informed where injured under him benefit of the entitling circumstances to the that, Compensation Workmen’s payments act and he receives under employer wages attention, act behalf of Ms or for medical required money he is to refund the same in he the event recovers - judgment party from a injuries. third for his liable It is asserted the instruction was an abstract declaration law place and had no case; in law not that the is misstated. We are inclined to believe this is However, Kroger correct. Company reply does- not plaintiff’s instruction, answer proper,' if not was not re versible under the statutory liability error facts record. The an employer Compensation under the Workmen’s act is different from liability sought imposed to be on defendants. The facts in volved plain within the instruction had no relation to the merits of They tiff’s action. were not relevant issues before cause.of jury. But, jury this case the plaintiff’s were told counsel opening in his plaintiff’s employer statement that after the accident him necessary furnished with all the medical and attention and care ‘‘ paid plaintiff weekly course, any $20 and of verdict which you award pay him he has to back. is the pay That law. He has to [plaintiff], Company. you that back So, to the understand that circumstance.” Plaintiff, stand, statement, the witness confirmed counsel’s his testifying he employer’s understood would have refund his out lays in his behalf in the event he secured verdict. All this, possibly more, jury objection adduced before without motion to strike. The Comm., instructions in Gillioz Highway v. State 348 225 211, Mo. 153 18, Rieth, S. W. 2d 26 King [7], [11], 475 1, Mo. 108 W. 2d directing were [3], verdict [8, 10], S. instructions. The instant instruction did not It direct verdict. application only could have- jury in the event-the facts found the plaintiff. cautionary for the was of a It nature. did not authorize It any damages. increase the amount damages The measure of damages instruction did not an authorize increase in on account ‘ ‘ ‘ giving payments. of these of an abstract instruction will not appears constitute reversible error complaining unless it party prejudiced, jury has been or that the could have been misled ” thereby.’ City (Mo.), Cason v. Kansas Ry. Term. Co. S. W.
437 not the instruction trial court considered 133, 139 The 2d [9]. hold. is not shown and so We think reversible error prejudicial. a predicating, refusing an alleged in instruction Error' is dark, poorly- finding room was so that the upon a defendants’ verdict of guilty clearly and the floor lighted, that could not see plaintiff was the lights electric in negligence failing turn the contributory in on than the refused 7 was broader given, think instruction room. -We in refused involved in the factual instruction and that issues In given instruction. submitted in were within those struction duty plaintiff of exercise jury that it was the struction told lighted dimly safety; that if the room were ordinary his own care for clearly when he the floor plaintiff .could not see and so dark that eu proceeded have reasonably person would not prudent a tered and neg was plaintiff proceed, did so plaintiff and that floor, across the fact of the presentation ligent. permitted instruction of This However, the to correct the situation. lights available that the were negligence to necessarily was not found it jury, by verdict, their turning proceeded, without e., i. plaintiff the floor as proceed across any on situation, to turn this failure lights. Therefore, in on .the change the result.' lights have been insufficient to must damages authorized an allowance instruction The measure of earnings $65 not in an amount to exceed wages and of for loss wage weekly from plaintiff’s' evidence established a week. The $25 $20 that he additional earned an employer had been and $45 his receiving $20 had been through other work. He testified he a week “The alleged: the accident. It is employer from his since a week hence, his ’; and, a week is for’ $20 not show what record does loss testimony: ignores plaintiff’s the context of taken position is $45/ making outlays is, employer accident his been that after the had wages bills which he his and medical would have on account of judgment; outlay a ac-' received that the in the event he to return wages at the rate not $20 his had been of but he did week count paid for medical bills. There is no indication what had been out know - $20 were entitled to mentioned that defendants credit' the of record weekly. liability against plaintiff’s $45 $20 loss and on their liability to credit their in tort strangers are not entitled That employer payments of another the made such under employee to an act, Heel Compensation Workmen’s see Brouk v. United Wood (Mo. App.), 145 W. 2d S. Co. 481[9]. $16,750 that the is It is claimed verdict excessive. years age, married,
Plaintiff at the time of the accident was working weighed about 200 good pounds. He had been health, heavy 'employer, handling for his meat. His years fourteen sides of earnings $3,000. sharp pain exceeded annual caused accident through body his back and made his eon- to shoot numb. He tried to suffering account Another
tinue work but was unable on illness. Baptist hospital him. was taken to the Missouri driver relieved He Company’s was Packing doctor treated him. He the American where He, diathermy, with hospital about two weeks. treated bakes, in bed and sedatives. He was released to stroll infra red rest regain strength. He lost the of his left in an effort to use around days. He leg hospital to the in October for ten used and returned repeated. and crutches and former treatment steel brace *12 leg 1944. regained early part March, use of his in of partial He he pass with his and bowels. After At times would blood urine he leg pain. his he seemed to suffer more regained partial use of left having a for a hospital check-up, He admitted to third time gastro-intestinal symptoms. he developed certain suffers Also occurred six months he from shortness of breath. The trial after re- suffering question that he injuries. his was no was then ceived There pain totally and was He would need future treatment. disabled. damage spine his in the His condition was due to lumbosacral region damage He to nerve structures of back. had an un- and leg. injuries a drag were of that conscious of his left nature x-rays genuine. up but were nonetheless would not show in Dr. surgeon Thieme, orthopedic Harry plaintiff L. an and who treated Packing Company, plaintiff going stated for American to have back; permanent pain, impaired with his loss of motion, trouble back; might required to a he be wear brace function of the certainly period time; permanently; for a of that he considerable might duties, but could not return to his former be able to do some light plaintiff’s condition work. Dr. Robert Nussbaum described questionable and it part comparable in as to shell shock stated was regained might capacity how much could be and he functional recover might job again. of a or never be able to take care Dr. F. G. describing findings his stated Pernoud, after there will be . . degree I some of described but permanency of all the conditions ’’ may of the conditions be variable. City Shain, 316, ex Kansas v. State rel. Pub. Serv. Co. 350 Mo. 428, authority 43 cited, 165 S. W. 2d is to the effect 0[2], 322[2], permanency injury conjecture of the that the must removed from be with probability certainty and established reasonable to sustain injury. damages permanent jury plaintiff’s a could find that injuries permanent were of a nature nar testimony from the above testimony disposes por This also of the rated. contention that damages permitting permanent tion of the instruction an award for injuries upon speculation. authority Brady rested Under of 502, Ass’n, 1, v. Rd. Mo. 127 S. W. 2d and cases Terminal cited, disposed we there are not interfere. instruction of paragraph is claimed that
However, it jury to requiring the instead of damages assumed the measure and medical on account of plaintiff to $620 was entitled find that 'itself to this construction lends hospital attention. The instruction as it such sum believed jury plaintiff award it told the in hospital medical and attention compensate him such “for would and by reason on account plaintiff has received the amount of $620 ” may cured injuries . . . This be remittitur of his 549, Leingang Geller, Co., Hasner Hdwe. Mo. & $620. Ward 2d 256, 73 S. W. 262[9]. judgment upon plaintiff, is affirmed condition that Accordingly, judg- sum the date of the days, $620 within ten remit said as of court; judgment will be reversed otherwise the ment circuit Barrett, CG., the cause remanded. Westhues concur. by Bohling, C., adopted foregoing opinion PER is CURIAM: —The opinion judges concur. as the of the court. All the Benjamin Company, Railroad B. Joice v. Missouri-Kansas-Texas Corporation, (2d) Appellant. 39366. 189 S. W. 568. *13 No. September 4, Two,
Division 1945. Rehearing Overruled, Banc October 1045. Transfer to Motion