Argus v. Michler, 30714

• Decision Date: 19 September 1961
• Docket Number: No. 30714,30714
• Citation: 349 S.W.2d 389,93 A.L.R.2d 776
• Parties: John H. ARGUS, Plaintiff-Appellant, v. Fritz MICHLER and the Texas Company, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 389

349 S.W.2d 389

93 A.L.R.2d 776

John H. ARGUS, Plaintiff-Appellant, v. Fritz MICHLER and the Texas Company, Defendants-Respondents.

No. 30714.

St. Louis Court of Appeals, Missouri.

Sept. 19, 1961.

Edward F. Downey, Paul E. Dixon, Lawrence E. Ehrhart, William B. Kelleher, St. Louis, for plaintiff-appellant.

Morris E. Stokes, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, for defendants-respondents.

GEORGE P. ADAMS, Special Judge.

Plaintiff-appellant sought recovery in the sum of $10,000 for injuries he received when he fell in some oil on a driveway of a filling station operated by defendant-respondent Michler. Originally joined as defendant, the Texas Company, owner and lessor of the premises, obtained a directed verdict at the close of plaintiff's case in chief. Reference to 'defendant' will, therefore, mean defendant Michler only. Following a jury verdict in favor of said defendant, plaintiff appeals.

Plaintiff's sole ground for reversal is his attack on Instruction No. 3, given at the request of defendant, relative to plaintiff's status while on defendant's premises.

Since defendant prevailed below, and in view of the fact that we find no reversible error, no detailed review of the evidence pertaining to the issue of negligence need encumber this opinion. Suffice it to say that considering the evidence 'in the light most favorable to plaintiff * * *,' and according him the 'benefit of all supporting inferences fairly and reasonably deducible * * *' therefrom, and disregarding 'defendant's evidence except insofar as it may aid plaintiff's case. * * *' La Plant v. E. I. Du Pont De Nemours and Company, Mo.App., 346 S.W.2d 231, 234(1), the jury could have found that plaintiff was a business invitee on the premises who was injured when he slipped and fell in a pool of oil or grease that had dripped from an automobile on the concrete driveway 6 to 8 feet outside one of the doors to defendant's filling station building; that such pool constituted an unsafe condition which had existed for at least 6 hours; that such condition was constructively known to defendant and was negligently suffered to exist without being cleaned up (a task requiring 30 seconds); and that plaintiff had no knowledge or notice of such condition. Becker v. Aschen, 344 Mo. 1107, 131 S.W.2d 533, 539(14). The issue of plaintiff's right to recover was properly submitted to the jury and defendant's motion for a directed verdict at the close of all the evidence was correctly overruled.

No instructions on the question of plaintiff's contributory negligence were offered by defendant and no such issue is made here.

No claim was made below, nor is any now asserted, that defendant's negligence was of that degree that would render him liable to plaintiff if he were a mere licensee ('* * * wantonness, or some form of intentional wrong or active negligence * * *'), Stevenson v. Kansas City Southern Ry. Co., 348 Mo. 1216, 159 S.W.2d 260, 262(1).

If plaintiff was entitled to recover, therefore, he must have been a business invitee to which defendant owed the duty to use reasonable care to prevent injury.

The evidence touching plaintiff's status is practically undisputed.

Defendant operated an automobile filling station at the southeast corner of West Florissant and Chambers Road in St. Louis County, where he had tires for sale.

Plaintiff and his wife resided on Chesley Drive in Dellwood, about one-half mile from defendant's station.

On January 10, 1959, about 6:00 P.M., plaintiff came from his work in downtown St. Louis and got off his bus in front of defendant's station. He intended to call his wife to come get him in the car. A public telephone was located in a booth on the northeast corner of the intersection. Plaintiff intended to cross the street and use this phone. However, someone was using it. He waited about five minutes for that person to finish. He remembered that he had used a phone in defendant's station before. He decided he wanted to do some shopping around for tires and went to defendant's station to use the phone to call his wife. He first decided to do some tire shopping right at the time when he couldn't get into the phone booth across the street. If it hadn't been for the fact that the phone in the booth was busy, he possibly would not have gone to defendant's station that evening.

On the way to defendant's station, plaintiff fell. After he fell, he stayed outside the station building five or ten minutes when he went inside and called his wife and asked her to pick him up at an ice cream shop across the street from defendant's station. In five to fifteen minutes, plaintiff's wife arrived and he went across the street where she picked him up. They drove back to defendant's station and plaintiff showed her where he fell. Plaintiff never asked anyone at defendant's station about the tires or the prices of tires.

Plaintiff testified he had been in defendant's station before on 'just several occasions. Not on a regular basis.' Defendant testified that he did not remember ever seeing plaintiff in the station before.

All of the testimony relating to the purpose of the telephone located in defendant's station is found in the following portions of the cross examination of defendant:

'Q. Well, Mr. Michler, this phone that you had in your filling station on the night of January 10, '59, that was not the type of phone that you have in your home, was it? I mean, in other words, this was a type of phone that you actually put money in to use, isn't that right? A. That's right.

'Q. And do you get some sort of remuneration from the telephone company for having that phone in there? A. No, sir.

'Q. They don't pay you anything, do they? A. No, sir.

'Q. You keep that in there for your own use and the convenience of your customers? A. That's right.

'Q. Your answer is yes? A. Yes.

'Q. And you keep that in there for the use of your customers? A. That's right.

'Q. So that one of the reasons for having it there is someone might come in to use the phone and end up buying a set tires, isn't that right? A. That's right.'

In his petition, plaintiff adopted his theory of the case, alleging, '* * * plaintiff entered onto defendants' aforesaid filling station premises to use the telephone and to inquire about the price of tires and was defendants' customer and was an invitee of defendants therein * * *.'

Instruction No. 2, given at the request of plaintiff, submitted the issue of defendant's negligence on the theory that plaintiff was a business invitee, and to accord him the status of a business invitee the jury were required to find 'that Plaintiff came onto the filling station premises as a member of the public intending to use Defendant Michler's public phone and to price tires and became an invited customer of Defendant Michler * * *.'

Since it was conceded by the defendant that plaintiff used the phone, we are justified in assuming that the jury so found. Having, then, found against plaintiff under his Instruction No. 2, they must have concluded either, (1) defendant was not negligent under any theory, or, (2) plaintiff did not intend to price tires (a finding within their province even though plaintiff's testimony that he did intend to price tires was uncontroverted by any express testimony). Gould v. M. F. A. Mutual Insurance Company, Mo.App., 331 S.W.2d 663, 669-670(10).

Instruction No. 3, given at the request of defendant, is as follows:

'The Court instructs the jury that if you find from the evidence that plaintiff came onto the premises of defendant Michler's service station solely for the purpose of using the telephone for a personal call, and was not on said premises on business of a mutual interest to said parties, and was not there for any purpose connected with the business of defendant Michler, then your verdict shall be against plaintiff and in favor of defendant Michler.'

On this appeal, plaintiff asserts error in the giving of Instruction No. 3, first, because 'the applicable law relating to injuries sustained by those impliedly invited to business establishments, including filling stations, is not covered' by the instruction, and it was 'susceptible to the interpretation that appellant was a trespasser'; and, second, because defendant was 'bound by his testimony that appellant used the public telephone kept there to promote business and thereby was the invitee' of defendant and the instruction permitted the jury 'to ignore the issues of liability' to plaintiff as an invitee.

As to the first contention, it can be conceded that insofar as the use of the phone alone was concerned, without an additional finding of some purpose 'of mutual interest to the parties' or one 'connected with the business of defendant,' the instruction did cast plaintiff into the class of a licensee at best--with no evidence of a failure of defendant to respond to the duties imposed upon an occupier of land to a mere licensee.

In support of this position, plaintiff cites Hoffman v. Kroger Company, Mo.App., 340 S.W.2d 152; Becker v. Aschen, supra, and Happy v. Walz, 358 Mo. 56, 213 S.W.2d 410. None of these cases aid plaintiff. In Hoffman, plaintiff had purchased groceries from defendant's store and was returning to her car on defendant's parking lot when she fell. In Becker, plaintiff was in defendant's filling station for the purpose of having the oil in his car changed and had, at defendant's direction, driven upon a grease rack and slipped as he was getting down from the rack. In neither case was there any issue over the status of the person on the premises--they concededly were business invitees. In the Happy case, plaintiff was on his way into defendant's store to buy a ladder when he fell into an elevator shaft. The Supreme Court held that plaintiff was a prospective customer and as such '* * * was an invitee in the sense that his approach to the store was for a purpose of interest and benefit mutual to plaintiff...