*1 continuing a or whether the for business lowances not bfe made judgment surcharging losses incurred. The justified instant facts adjust directions to the settle- the cause remanded with is reversed and certify expressed with the the same to ment accordance views Barrett,.GG., concur. probate court. Westimes PER, foregoing Bohling, C., adopted opinion CURIAM: —The opinion judges as the court. All concur. of- Kroger Baking Dorothy Grocery Company, Appellant. & Devine v. W. 813. S. Two, May
Division 1942.
Rehearing Denied, June 1942.
Wayne Ely appellant. *3 of counsel. Richardson respondent; Orville Hullverson
Everett *7 Grocery reassigned Kroger BARRETT, cause the C. In this Baking $10,000.00 injury judg- Company appeal personal & from a Dorothy ment in favor Devine. Grocery Baking originally against Kroger Company, & suit was
Henry Boemler, manager Eureka, Missouri, at the store *8 Fromm, building. John the owner of the The trial court sustained respondent’s petition a demurrer to the to Fromm and the case jury was then him. a dismissed as to The returned verdict in favor against of appellant. appellant Boemler and the The now contends plaintiff’s petition that a principle stated cause of action based on the respondeat superior jury’s exonerating of and therefore the verdict Boemler, complete management store, who inwas control and of the fixing liability and on appellant inconsistent, nullity the a and can- stand, agent being guilty negligence or servant found not of jury Kroger could Grocery Baking not find Company negli- & gent. petition alleges “Kroger Grocery
The that Baking & Company . . . was at all engaged times herein general mentioned in the re- grocery tail throughout business particularly United States and City in the Eureka, Missouri, of grocery where maintained retail a general store and public invited the to purchases make and do busi- therein; ness Henry that . Boemler agent was the' and serv- ... general ant manager, and charge and as in such was of the said grocery store . . . and as charged general such was with the supervision safety and care of the said store and with persons of lawfully doing therein . .” respondent’s petition business . -The alleges then September that on 2, 1937, she was “a customer and of corporation invitee defendant and Boemler in said store” . . . permanently and “was injured concurring direct result of 'Then, follow five all the
negligence and carelessness defendants.” of setting particular conduct forth the specifically separate paragraphs negligently charge: “That them Four of complained of. defendants ordinary inspect care to carelessly to exercise failed and omitted and . and . . “failed and hole” and the board the said exit doorway” in said hole existence of said plaintiff of the omitted to warn hole.” second up or block The “omitted fill said . . . and to Boemler corporation charge a/nd is “that specific .defendant defendant ordinary carelessly and omitted to exercise negligently and failed reasonably with a persons, plaintiff, particularly care furnish to reasonably exit from and a safe said place in which do business safe permitted negligently caused, suffered store, in that defendants exit, of placed passageway aforesaid to across'the said the board carelessly exist in the floor negligently permit and did hole says: injuries . . .” “all and con- of said She"then of the store occurred a direct result of the ditions hereinafter mentioned negligence constructing, maintaining concurring in all defendants of permitting the said to exist .” condition .. instructions, respondent gave The the- submitted and court two liability. damages on the measure of one the other on one The hypothesizing theory says: respondent’s liability “. . . that Kroger Company question in at time the occurrence defendant engaged Missouri, . . . in grocery Eureka, was business in evidence, at the store mentioned in and that defendant Boemler was manager charge said thereof, store and and that at the exit hole, said store . . presence . . . was a and the thereof .. dangerous reasonably floor made said and not persons safe for using same, and that knew ... hole said defendants n ., . . plaintiff and that customer . was a . . defendant guilty negligence were permitting said con- defendants dition to exist . . failing . and in up ... to fill or block same . . . and in failing plaintiff to warn . . . and that if plaintiff injured as a negligence” direct result of such . . . she was entitled to recover. gave jury court three forms of permitted verdict. One “against find defendants,” both' permitted *9 jury one the find “in to favor of both defendants” and the one the used
permitted “against a verdict the Kroger Grocery Baking defendant & Company” and “in favor of the Henry defendant Boemler.” complained The hole of appears to been have inherent in the con- struction of the floor and doorsill. It was and three one-half inches long five-eighths of an inch wide and bad been there for at least years. five Other facts, substantive in they so far as bear on this question, about alleged are as in the petition and as stated in the re- spondent’s principal instruction. However, there is no direct evidence as to the nature and extent authority of Boemler’s except duties
631 charge of” the store. and “in manager he that his statement duty look his say part was a of it Woodworth, clerk, did Claude getting from customers prevent and to safety the floor of after the hurt. by proof, appel- of offered the given instruction on the burden
The terms, general both defendants. Its instruction on lant, covered, you by saying: “Then cannot duty storekeepers of concluded the them, negligent in main- defendants, or either were find that the of taining floor and said doorsill.” question objection to form or manner in which the There is no the liability jury. ap- the defendants’ was submitted to of the only it theory is held because was the pellant’s here could be negligence manager for employer Boemler and as liable his of such store, exonerating jury’s verdict him therefore the absolved charge negligence requiring exculpated it of the of a reversal of judgment. this
Although diversity is of to whether opinion there some may damages against liability employer be recovered an is whose wholly having on dependent negligent servant’s been the his —or respondeat superior doctrine of discharged servant has been —after personal liability question of there and can be no that we have is but adopted non-liability “Thus, of followed the rule in such cases. according weight authority, employer employee where joined parties by are injuries defendant in an action for inflicted the employee, a verdict employee liability which exonerates the from injuries solely by alleged negligence caused misfeasance employee requires also employer, the exoneration of the and al though the purports liable, verdict hold the employer it cannot judgment form the against basis of employer, but must be set aside.” Jur., 534, 962; Am. p. Sec. 78 365; A. L. R. 54 L. R. A. [35 649, (N. S.) 30 L. A. 404; R. Atchison, Stoutimore & Ry. v. F. T. S. Co., 338 463, (2d) 658; Mo. S. Chicago, W. McGinnis v. I.R. Ry. & Co., 347, P. 590; Mo. Jones, S. W. Lambert v. 339 Mo. 677, (2d) 98 W. 752; Reuhling S. Pickwick-Greyhound Lines, 337 Mo. (2d) 85 W. 602; S. Newberry Co., Stith v. 336 Mo. 79 W. S. certainly This is liability the view when 447.] solely rests on the doctrine respondeat superior the master joined with action, the servant in an the purpose which tois liability fasten employer on the for the employee’s tortious conduct. A. R. Typical L. are [98 the motor vehicle cases which 1057.] plaintiff master, seeks to hold owner or employer for the negligent manner in which a driver operated vehicle. If his both are sued and driver is negligence exonerated of jury’s verdict or employer owner necessity is of absolved charge, same liability there based on their being joint tort-feasors but on respondeat superior. And, gravamen “The the charge neg- is
632 is found be had unless recovery can no employee tbe ligence of therefore, the when negligent; employee was the jury that by the thereby that he employee, defendant favor of the in found liability on no could be necessarily there followed negligent, it' not Lines, Pickwick-Greyhound v. employer.” [Ruehling part the 1078, 70 W. Co., S. 334 Mo. Mfg. D. M. Oberman Stephens v. supra; 732, 81 W. Mo. S. Everitt, Inc., 336 Hannan & 899; Wright v. (2d) A. L. R. in 77 are collected cases imprisonment The false (2d) 303.] in which any other tort ease in So it is R. 652. 35 A. 930 and L. failure of upon the dependent liability is rests on or defendant’s one impute the sought duty it is to his employee perform to his not employee is If the employer. to employee negligence of the the be held. and cannot negligent not is negligent principal the [Mc Newberry, Ry. Co., supra; P. Stith v. supra.] R. I. & Chicago, v. Ginnis relationship and servant only of master when the applies not The rule landlord and exists, relationship of agent but the principal and to or relationships, whether cre and other under certain conditions tenant from lia by conduct, person exonerate contract which one ated or ability negligence the of another bility impute in the of absence Co., Newberry Jones, supra; v. supra; him. v. Stith [Lambert 1062; Century Bldg. Co., W. Schneider v. 201 Mo. S. Oreutt 691; Dubinsky Realty Co., (2d) 127 W. Guthrie v. 344 Mo. S. ] (Mo. App.), 54 W. Real Estate Co. S. Wenzlick Albert 801. manager Although agent, employee, a mere an whether he be or duty subject liability personally pro if he breaches to others is his against negligent (2 Agency, tected invasion Law of Restatement 350, 353, although 354) principal, Secs. be the whether-he a master or an employer, agent (1 the his liable for acts of Restatement 213; Law Agency, Agency, of Restatement Law of 470) Sec. Sec. principle respondeat superior of applied used and here with liability reference to the of the master is a doctrine of the substantive law of agency. “Liability torts and not of law substantive of only requirements exists if all the an action negligence of tort for Agency, exist.” Law p. 464; Restatement Essays 3 Select [1 Anglo-American Legal History, pp. 377-390.] This fact important is disposition of this case because liability Grocery of the appellant, Kroger & Baking Company, ulti- mately depends on the law of torts substantive and not on the sub- agency stantive law of respondeat superior. requisites all the If of a against tort action the appellant present are it would be liable regardless liability manager of its his exoneration jury. liability predicated the master solely upon “If negligence employee in whose favor a verdict has been found, upon but negligence of another employee, or that employer himself, against a verdict employer is not inconsistent. A verdict in favor of an employee recovery does not bar against *11 which, guilty acts on himself of latter has been where the employer liability may predicated.” be employee, acts of independently of the Newberry Co., supra; Am. Stouti 963; Stith 534, p. v. Jur., Sec. [35 words, In if the Ry. Co., other & Atchison, T. S. F. supra.], more v. manager on the other its on one hand and owner the defendants —the he plaintiff to which or legal duties the —are under different respondeat superior irrespective and of liability arises breaches then joint may made tort which be as to distinctions regardless of the possibility other and the of and nonfeasance feasors, malfeasance question. in injury conduct being responsible for the servants City, 161, 308 Mo. 271 S. W. Lindman v. compare: Kansas [See 85 (Mo.), Co. S. W. Perkinson Bros. Const. 516; Nimmo v. 144 W. (Mo. App.), (2d) S. 98; Ryan Standard Oil Co. (2d) v. Jones, supra, Newberry Lambert v. Co., supra; 170; Stith v. Century Bldg. Co., v. supra.]
Orcutt law of torts as applicable In the substantive is this case Torts, 2 343: follows, Law of Sec. Restatement liability bodily to harm subject land caused possessor “A is of if, or a natural condition thereon artificial business visitors to if, by the exercise of care could only (a) knows, or reasonable but he him, which, if realize discover, known to he should condition the them, (b) to no involving an risk has unreasonable reason they will condition or realize the risk discover the to believe (c) permits or them therein, and invites to enter or remain involved exercising (I) care make reasonable to the upon the land without reasonably (II) give warning adequate a safe, or condition the' n harm relinquishing any without them to avoid the enable they receive, possessor if public are entitled to the a which is services utility.” duty occupant premises anof
This is the owner its ‘business following in cases are collected the annotations: 118 invitees. The 710; 136; 58 425; 1111; 100 A. L. R. A. L. R. 46 A. A. L. R. L. R. 33 A. 181. 866; denying 43 A. R. L. R. Four of our later L. cases liability Ilgenfritz sustaining under the rule are P. Missouri Co., 648, (2d) 723; 101 W. 340 Mo. S. Stoll & L. v. First National (2d) Long Bank, 582, 97; 134 W. Woolworth, Mo. S. v. F. W. 619, Brock (2d)W. and Van v. First Bank, 159 S. National appellant 161 W. 258. The does Mo. S. not contend that liability not make a case of on respondent did says but facts liability jury no found the manager is because store there again quoting pleadings guilty. Without and the instructions it Kroger’s liability obvious that comes within this substantive rule Kroger a appellant law. was store. The engaged tort It was in grocery in the in retail business store Eureka. respondent there fell and injured, on business was was could reasonably hole in find, because of the the floor which “the defendant they knew of when permitted Boemler” corporation and defendant an insurer a is not proprietor of store hazard. While occupant of duty an owner or “The which safety customers, of its reasonably condition a safe keep premises under to property is responsibility.” personal by him to avoid delegated so as cannot Torts, Sec. 752; 1 93, p. Restatement Laws Jur., Am. Sec. [38 Baking Com- Kroger Grocery & appellant, In short pp. 471-475.], negligent manager found to be irrespective of whether its pany, a manner duty maintain the store such respondent to owed to the of which it in the by reason of a hole entrance injure not to her It is not to her. unknown have known and which was knew or should finding solely upon type tort which be sustained agent. Others manager or other negligence part of some on its *12 com- respect to condition may may negligent been with the or not have wrong for its yet liability appellant on of fastens the plained and Consequently, there depend superior. respondeat not on which does in arrest of inconsistency jury’s and the no in the verdict motion is judgment properly was overruled. nothing respect in our in this
There is inconsistent views on the personal injury us a action requiring and the to review rule theory it in the below. The re upon same which was tried court causing injury an distinct her spondent pleads instance of two torts single negligence negligence an instance —concurrent of —and superior, dependent respondeat as is true the automobile cases. on theory change in the of the law the case Consequently, there is no of the the the evidence show each pleadings, because instructions duty legal under and separate have been a different or defendant to liability non-liability obligation plaintiff each to the and the of of legal Kroger her a dependent theory; them to on different because might possessor (as it the owner and and did or did not the duty find) a he storekeeper violate its Boemler because was or guilty jury might find) neg (as specific was not the of certain of acts ligence plaintiff.. respect compare: with to the State ex [See al., 598, 221 Sturgis 91, rel. Bush v. et 281 Mo. S. 9 W. A. L. R. 1315; Bank, Stoll First National 345 Mo. 134 S. W. 97; S., 1464, p. 72 3 Jur., C. J. Sec. and Am. 830 and Secs. the cases there cited.] assignments appellant’s The of error with respect the testimony, medical the instruction on the damages measure of and the of the excessiveness verdict all together. considered appellant says The trial permitted the court plaintiff’s the medical give argumentative,
witnesses to speculative contradictory evi dence, allegation that no there was “plaintiff’s that kidney left was displaced injured” or otherwise and no testimony that displace kidney ment her necessary of was a result of her fall. It contends instruction on damages of measure is erroneous because it injuries damages permanent give find and jury to allows the resulting from the any injuries such proof no there was when of. complained accident summarizing petition some
Quotations portions from sufficiently part appellant’s a answers medical evidence neg- says: “. . as a direct result of argument. petition . The concurring aforesaid, plaintiff’s defendants ligence ... of all joints, “were spine and sacroiliac bones” etc. back and organs severely broken,” etc., plaintiff’s abdomen and “that all the mashed, bruised; severely therein crushed and that she suffered were organs undergo required a all her female prolapse severe and was December, 1937, Louis, Missouri; that operation an therefor in St. severely crushed, it kidney bruised, her contused and so that necessary perform operation upon an plaintiff became for the right kidney in . cemplete plaintiff removal of her . that . miscarriage home; suffered a at her ... that she suffered injuries severe shock . . . and all her are serious and nervous permanent.” plaintiff and her husband The testified she suffered miscarriage gave opinion and at least one doctor it his that she kidneys cavity had aborted. Dr'. said the were in Ozias the abdominal though peritoneum not inside the and that fall she had'was suffi- damage kidney. cient to Both he and Dr. Berard were opinion kidney misplaced could by have been the fall. He also gave opinion her prolapsed as his womb was caused the fall. kidneys Dr. infected, Berard found both the ureter kinked and re- kidney. right moved the hysterectomy Dr. Gerwitz who performed a “Well, said: I think the fall prolapse.” caused the appellant *13 testimony. offered no medical question allegation
There no but an general that or plea of dam ages only injuries necessarily covers such wrong result from the (Parkell relied on Fitzporter al., v. 217, 239) et 301 Mo. 256 S. W. and special that damages which are the necessary natural but not t wrong result injury and complained specifically of mus be alleged recovery may injuries. before be had for such Examples of what this has been construed to general mean a allegation are of bruises, contusions, etc., proof and of a right fibrous tumor on the hip likely does not a include condition to become and ma cancerous lignant (State ex Allen, rel. Grisham v. 344 66,Mo. 124 (2d) S. W. 1080), general and allegation injury of to the organs female was held miscarriage to not include subsequent and infection (Walquist v. City Rys. Co., Kansas 34, 292 493) Mo. 237 S. W. and neither does an allegation permanent injuries serious insanity include and (Connor traumatic neurosis Rys. v. City Kansas Co., 18,Mo. 250 298 574). S. case, W. In however, this we are of opinion allegation that “plaintiff’s abdomen and all organs therein severely were mashed, crushed and bruised” considered with allegations the other
636 as to the evidence
and the
to cover the
entire
sufficient
record.was
Price v.
kidney
respect
is similar
displacement of
this
And,
Finally, appellant urges that it is entitled to a new trial closing improper argument this cause because of the plaintiff’s objected counsel. The statements to are as follows: great “You know of syphilis war on in this nation. Parran Dr. Washington Medical Board in responsible is the one who is for syphilis a for having every hospital. routine examination say “. you . . and I want to gentlemen, don’t have to be worried - bringing against about in verdict both of a these defendants. Leave it ’’ lawyers to the to collect to or both. one ‘‘ Gentlemen, you gentlemen bring I ask verdict, to woman in this only damages because she is entitled to injury, her but to against her vindicate vicious that upon slanders have been cast her character.” properly
In order to appreciate argument necessary this it is to set forth excerpts appellant’s from the argument, which follow: “He any knows she didn’t miscarriage. have He knows that all bushwa. “. . . I say every want to statement court this room you that has been made days for two has been pull made to your wool eyes, over a framed lawsuit from one end the other. “Mr. object I to that and I move that counsel be Hullverson: reprimanded. Stay
“The Court: within the evidence. I move that counsel
“Mr. Hullverson: reprimanded. “The Court: Proceed. Ely: “Mr. And if it isn’t framed I lawsuit never saw one. “Mr. : I move the be instructed Hullverson disregard it. “The Court: Refrain from those Stay comments. within the evi- dence. *15 Ely: lawsuit. it a'framed is say I evidence shows
“Mr. court that the please, court ask again, if the “Mr. I Hullverson : in this unwarranted making statement reprimand for such an counsel case. Ely. record, Mr. Refrain please, Stay within the “The Court: making from statement. that same Ely: exception. right. my All Note “Mr.
‘‘ given gave syphilis for said it is man her- a test The same that you gentle- And if everybody goes Mary’s Hospital. to to that St. your any had member hospital, men ever been in or have you family know that isn’t so. hospital, in somebody thought trying belly, “If had a child in her she was she I get rid of it. I know whether she did or know noth- to don’t not. gentlemen delicate, ing all, jury, personal, that at but as about thing try something a private is, that if she did to do like that she ought walking liberty any be around in court room not to at this or away A place. prospective other who will do with her own woman liberty. offspring to be at doesn’t deserve yes tough tough lawsuit, a bet it “Oh, lawsuit. You is be- cause lie another. have combat one after have to defend we to We against things knowledge we can have no positive about. All we can you can present have are the facts that we to from her private own papers. you The contradictions and that lies she has told in this court room, when the hospital, now, or she told doctor in place which in? is she the most correct
“. . . Mary’s the solemn records of the St. . Hospital . . points thing, just but is, you to one and that as I told at the out- set, plaintiff trying in this that the lawsuit is to sell the defendant case some old in this female troubles that she had. say I you “Please me that all believe we want to when. to do is you gentlemen do deep your what know in down right hearts is the
thing do; if be this man, men, there one two men, three on jury who, you get your when behind the doors of room, have forgotten duty so far give their away as to want to money to this you woman liar, that know is a you then rest of men hold them you line, in bring the rest of men in a you verdict know ought brought in in case; this why, that is I gentlemen, now, say, repeat I and I think the court permit it, will since I testimony, call attention to this it is framed lawsuit start from to finish.” Standing argument Mr. alone Hullverson’s may be improper but obviously what he with said reference syphilis bringing a in in answer vindicating client of vicious slander Ms verdict Ely’s argument. If are correct we Mr. to and in retaliation of probably liability respective, it was of tbe defendants our as to tbe view But, against only of them. bim a verdict one to ask improper not say argument improper could bis this case regardless of that we say adversary’s argument. do not *16 We in view of bis or erroneous Ely be did make nor Mr. to make tbe improper for statements it was from tbe argument possible not a to draw bis inference was even language, vantage point. strong It forci- from bis case, least at retaliatory argument contrary, argument; provocative ble likely least, compel sympathetic tbe consideration say and not tbe cogency. persuaded of its appellant demonstrate'preju- that tbe has failed to opinion It our is concurs; judgment Westhues, G., is affirmed. error and tbe dicial Bohling G., dissents. foregoing opinion C., adopted
PEE CUEIAM: —Tbe Barrett, opinion judges tbe All tbe tbe concur. court. Henry Appellant. S. W. 847. Martin, State Two, Division June 1942.