Glaser v. Rothschild

Citation120 S.W. 1
PartiesGLASER v. ROTHSCHILD.
Decision Date08 June 1909
CourtUnited States State Supreme Court of Missouri

A proprietor of a store invited plaintiff to come to the store to advise him in a business transaction. When plaintiff reached the store, he found the proprietor busy opening his mail, and he was required to wait. While waiting, he asked permission to go to a closet in the basement, which was granted, and, while going, he fell into an unguarded pit in the basement. Held, that plaintiff was on the premises in response to the proprietor's invitation, and was not a bare licensee at the time of the injury, and the proprietor owed him the duty of exercising ordinary care for his protection.

6. TRIAL (§ 191) — INSTRUCTIONS — INVADING PROVINCE OF JURY.

An instruction, in an action for injuries by falling into a pit in the basement of a store, that if the jury believed that the basement was sufficiently light to enable a person with average eyesight to easily see the pit, and that if they believed "that had plaintiff been in the exercise of ordinary care, he would have detected the depression, and would have avoided falling," then the finding should be for plaintiff was erroneous, as charging the jury that plaintiff's fall was due to lack of ordinary care, precluding a recovery.

7. NEGLIGENCE (§ 121) — PROOF OF NEGLIGENCE.

The mere fact that an accident has occurred is no evidence that it was caused by the negligence of defendant.

8. NEGLIGENCE (§ 122) — CONTRIBUTORY NEGLIGENCE.

The mere fact that one in a store fell into a pit in the basement of the store is no evidence that the fall was due to his failure to exercise ordinary care for his safety.

9. NEGLIGENCE (§ 44) — CARE OF PREMISES.

The proprietor of a store owes to one legally in the basement the duty of keeping it sufficiently light to enable him, while in the exercise of ordinary care, to avoid falling into a pit there.

10. NEGLIGENCE (§ 119) — USE OF PREMISES — PETITION — EVIDENCE.

A petition, in an action for injuries caused by falling into an unguarded pit in the basement of a store, which alleged that the basement was without light of any kind, is supported by evidence of a degree of light so small as to prevent plaintiff, by the reasonable use of his eyesight, from seeing the pit.

11. TRIAL (§ 194) — INSTRUCTIONS — EVIDENCE.

Where, in an action for injuries caused by falling into a pit in the basement of a store, the evidence showed that the degree of light was so small as to prevent an ordinarily prudent person from discovering the pit, an instruction that there was no evidence to sustain the charge in the petition, that defendant left the basement without light, was erroneous, as withdrawing from the consideration of the jury the evidence of the negligence charged arising from the failure to sufficiently light the basement.

12. TRIAL (§ 252) — INSTRUCTIONS — EVIDENCE.

Where, in an action for injuries caused by falling into a pit in the basement of a store, plaintiff testified that he looked; that he saw boxes, elevator shaft and a passageway; that the darkness of the basement prevented him from seeing the elevator pit; that had he known it was there, and had he been looking for it, the light might have been sufficiently strong for him to have seen it, but, having no knowledge of the existence of the pit and no occasion to look specially for it, he did not see it on account of the poor light — an instruction that plaintiff testified that had he looked he could have seen the passageway between the boxes and the elevator pit, and that if the jury believed that his failure contributed to his injury, there could be no recovery, was erroneous, as in conflict with the testimony.

13. STATUTES (§ 225) — CONSTRUCTION — LEGISLATIVE INTENT.

The court must read all statutes relating to the same subject-matter, and construe them together, and gather from all the legislative intent.

14. STATUTES (§ 181) — CONSTRUCTION — LEGISLATIVE INTENT.

The effect of a proposed interpretation of a law must be considered in ascertaining the legislative intent.

15. STATUTES (§ 190) — CONSTRUCTION — MEANING OF WORDS.

Doubtful words of a statute may be enlarged or restricted in their meaning to conform to the intent of the Legislature, when manifested by the aid of sound principles of interpretation.

16. STATUTES (§ 224) — CONSTRUCTION.

A statute should not be construed as if it stood alone and complete in itself.

17. STATUTES (§ 189) — CONSTRUCTION — MEANING OF LANGUAGE.

Where the language of a statute leads to a manifest contradiction of the apparent purpose of the enactment, a construction may be placed on it which will modify the literal meaning of the words used.

18. STATUTES (§ 211) — CONSTRUCTION — TITLE AS PART OF STATUTE.

Under the Constitution, the title of a statute is necessarily a part thereof, and the court in construing the statute must take the title into consideration.

19. NEGLIGENCE (§ 51) — PROTECTION OF PREMISES — STATUTORY REGULATIONS — CONSTRUCTION.

Laws 1891, p. 159 (Rev. St. 1899, §§ 6431-6456 [Ann. St. 1906, pp. 3216-3221]), entitled "An act relating to manufacturing, mechanical, mercantile, and other establishments, and the employment, safety, health, and work hours of employés," and providing, among other things, that hatchways and elevators shall be guarded, when construed in its entirety, and in connection with its title, is enacted for the protection of the health and safety of employés of the establishments mentioned in the act, and cannot be taken advantage of by one not an employé.

Valliant, C. J., and Fox and Woodson, JJ., dissenting in part.

In Banc. Appeal from St. Louis Circuit Court; Selden P. Spencer, Judge.

Action by Louis Glaser against Albert Rothschild. From a judgment for defendant (106 Mo. App. 418, 80 S. W. 332), plaintiff appeals. Reversed and remanded.

David Goldsmith and Lee Sale, for appellant. Seddon & Holland, for respondent.

LAMM, J.

This case was argued and submitted in division 1. That division was equally divided on the main contention in the case, to wit, whether Glaser was an invitee at the time he was injured, or whether he was a mere licensee. The cause having been transferred to banc, the majority of the Brethren were of opinion he was an invitee. The opinion of our Brother WOODSON, in division, to whom the case was there assigned, and by whom it was written, did not meet the approval of the majority on that point. His divisional opinion will be appended hereto as a dissent on that point, but we all agree that his statement of the case is correct. We all agree that paragraphs 1, 2, and 3 of his opinion correctly rule that there was error in the instructions as pointed out. A majority of the court agreed with paragraph 4 in his opinion. On that paragraph LAMM, J., stands dubitans. On paragraph 5, which holds that plaintiff had no case, and that the judgment should be affirmed in spite of the errors in the instructions, BURGESS, GANTT, and GRAVES, JJ., agree with me in ruling as follows:

(a) In such cases as this the root of the thing, the deciding question, is: Do the facts raise a duty, a breach of which is shown? Pierce v. Whitcomb, 48 Vt. 127, 21 Am. Rep. 120; Sweeny v. Old Colony R. R., 10 Allen (Mass.) 368, 87 Am. Dec. 644. There are such sure and clear words in the law in that behalf that all doubts are resolved, and one who runs may read. The general rule is that the owner or occupier of premises lies under no duty to protect those from injury who go upon the premises as volunteers, or merely with his express or tacit permission, from motives of curiosity or private convenience, in no way connected with business or other relations with the owner or occupier. Hargreaves v. Deacon, 25 Mich. 5; Benson v. Baltimore Traction Co., 77 Md. 535, 26 Atl. 973, 20 L. R. A. 714, 39 Am. St. Rep. 436; B. & O., etc., R. R. Co. v. Slaughter, 167 Ind. 330, 79 N. E. 186, 7 L. R. A. (N. S.) 597, 119 Am. St. Rep. 503, and cases cited. See, also arguendo, O'Brien v. Steel Co., 100 Mo. 182, 13 S. W. 402, 18 Am. St. Rep. 536, and Glaser v. Rothschild, 106 Mo. App. 418, 80 S. W. 332; Kelly v. Benas (Mo., not yet officially reported) 116 S. W. 559. A bare licensee (barring wantonness, or some form of intentional wrong or active negligence by the owner or occupier) takes the premises as he finds them. His fix may be...

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