Morgan v. Kroger Grocery & Baking Co. , 348 Mo. 542 ( 1941 )

ON MOTION FOR REHEARING. Respondent's motion for rehearing complains our holding that she failed to make a case for the jury is based solely on appellant's evidence, and violates the rule that on a demurrer to the evidence, the facts must be viewed in the light most favorable to the plaintiff, and the defendant's evidence to the contrary cannot be considered. She asserts the opinion is bottomed solely on: (1) the testimony of the defendant Meisburger (owner of the store, who was acquitted by the jury) and appellant's witness Bechtold, both of whom testified to the general use of the sidewalk for twenty years; (2) appellant's Exhibit 3, the store lease; (3) respondent's original, first and second amended petitions, which were abandoned by respondent, the case being tried on a third amended petition. Appellant introduced said abandoned pleadings in evidence.

[6] Respondent is right in saying we must view the evidence in the light most favorable to her in passing on a demurrer to the evidence. But this does not apply to documentary evidence which is introduced without objection and is undisputed. [Wendorff v. Mo. State Life Ins. Co., 318 Mo. 363, 369 (1), 1 S.W.2d 99, 101(2).] The abandoned pleadings were competent evidence asadmissions of respondent. [Wahl v. Cunningham, 332 Mo. 21, 39(13), 56 S.W.2d 1052, 1059 (14).]

As to the lease, the parties orally agreed at the beginning of the trial that the [52] store lease from the Meisburgers was dated in 1925, assigned to appellant in 1928, and expired in 1937. The casualty occurred in January, 1936. The written lease was offered in evidence by appellant without objection, formal identification thereof being waived by respondent's counsel. When counsel for appellant started to read paragraph 7(e) of the lease to the jury, counsel for defendants Meisburger objected to the reading of "that portion of the lease" and the objection was sustained. Then counsel for respondent said: "We want to now offer that same exhibit that he has just offered, or that portion of it, on behalf of the plaintiff." Counsel for defendants Meisburger objected and that objection was sustained. But, as we understand, only that portion of the lease was excluded. In the principal opinion four lines refer to and quote part of said paragraph 7(e). That part is stricken from the opinion. But the excision of it can work no change in the result. It clearly appears from the lease as a whole, omitting the part just stated, that in contemplation of the parties the lease was on the building, not the ten-foot sidewalk which had been thrown open to the public. And even though the Meisburgers owned and appellant leased the ten-foot strip subject to the sidewalk easement, it would make no difference in the result. [Callaway v. Newman Mercantile Co., supra, 321 Mo. 766, 12 S.W.2d 491.]

Respondent's own photographic exhibits C and D show there must have been general use of the whole sidewalk space from the front door of the store out to the curb. There is not the slightest contention that this had not been going on for many years, and nothing to indicate otherwise. There is nothing in the record to dispute it. Respondent herself testified she had been shopping at the store for quite a while; not a number of years, but several months, anyway. The following questions and answers appear:

"Q. And everybody used this same part of the sidewalk where you fell, didn't they? A. Everybody used that opening, the door on the sidewalk, yes.

"Q. I mean when they walked along the front there. That is all one sidewalk as far as looks is concerned? A. I think so.

"Q. All the same from the store out to the curb? A. Yes."

[7] Respondent further contends we have ruled the case on a point not raised in the trial court — that the question of dedication of the ten-foot strip by public user was not an issue below. If we are in error in that we have been led into it by respondent. She says in her supplemental brief en banc: "There is nothing in the record to show either a dedication of the plot to the city or an acceptance by the city," citing Benton v. City of St. Louis, 217 Mo. 687, 118 S.W. 418, which she says is "relied on by appellant." And appellant does cite the case under Point I of its brief, saying "the sidewalk on which appellant fell was a public sidewalk." We ruled the point on the decision cited by both parties. The final contention is that by reversing the cause without remanding we have denied her the right of trial by jury. This hardly calls for discussion. If there were questions of fact for the jury that would be true. But it is a judicial function to determine whether the evidence is substantial, and if it is not there is nothing for the jury to decide. [Cowell v. Employers' Indemnity Co., 326 Mo. 1103, 1116(III), 34 S.W.2d 705, 710(9).]

For these reasons the motion for rehearing is overruled.