Bender v. Weber

CourtMissouri Supreme Court
Writing for the CourtLamm
Citation157 S.W. 570
PartiesBENDER v. WEBER et ux.
Decision Date31 May 1913
157 S.W. 570
BENDER
v.
WEBER et ux.
Supreme Court of Missouri, Division No. 1.
May 31, 1913.

1. LANDLORD AND TENANT (§ 167) — INJURIES TO THIRD PERSONS — CONDITION OF PROPERTY — PERSONS LIABLE.

Defendants owned a group of buildings, the ground floors and basements of which were leased for business purposes and the upper floors for living purposes. In the rear was a private passageway about 8½ feet wide, the portion of which next the buildings was used for breadboxes, gasoline tanks, ash bins, and cellarways. The balance of the passageway about 6 feet wide was used by deliverymen and by the tenants in common. Plaintiff, an employé of one of the tenants, entered a grocery store on the premises by the rear door, and on leaving by the same door fell down a cellarway leading to a basement leased to the tenant who conducted the grocery store. The upper step of the cellar stairway was about nine inches west of the nearest jamb of such door. The stairway was guarded on one end and one side by railings, on the second side by the wall, the second end being open. The rear door was not intended by defendants as a means of access to the store, and they did not know of its use by customers for that purpose. Held, that defendants were not liable, since by the lease of the store, basement, and stairway the exclusive control of the access to the stairway from the passageway or from the rear door passed to the tenant, and hence defendants owed the tenant's invitees no duty to guard the entrance to the cellarway.

2. LANDLORD AND TENANT (§ 167) — INJURIES TO THIRD PERSONS — CARE REQUIRED AS TO LICENSEES.

Plaintiff, although possibly an invitee as to the tenant, was a mere licensee as to defendants, and they were therefore not liable for her injuries in the absence of any act of active mischief on their part.

3. COURTS (§ 90) — RULES OF DECISION — PRECEDENCE.

The decisions of appellate courts on one state of facts may not be applied automatically to another state of facts, but must be read in the light of the very case in which they were made.

Appeal from St. Louis Circuit Court; Charles Chaflin Allen, Judge.

Action by Laura Bender against George Weber and wife. From a judgment for plaintiff, defendants appealed to the St. Louis Court of Appeals, which affirmed the judgment by a divided court and certified the case to the Supreme Court. Reversed.

Claud D. Hall, of St. Louis, for appellants. John A. Talty and E. V. Selleck, both of St. Louis, for respondent.

LAMM, J.


Negligence. Personal injuries. Verdict and judgment for plaintiff for $1,250. Appeal to the St. Louis Court of Appeals. Affirmed there by a divided court. Certified here under section 6 of the 1884 amendment of the Constitution. The pleadings fill no office for present purposes.

The case on the facts is this: There are two streets in St. Louis (Cardinal and Laclede) cutting each other at right angles. In one of such angles there are a group of buildings owned by defendants, husband and wife. The ground floors and basements of some are leased for business purposes, while the upper floors of those and the whole of the other buildings are flats or dwellings occupied by tenants for living purposes. There is a paved private courtyard or passageway for footmen only (somewhat like a patio) for access to the rear of all. For convenience of expression, we will call it the "courtyard," passim. To fill its office suitably (which office was that of giving access by way of common use of tenants, and those other persons having a right to go to the rears of the group of buildings — e. g., grocerymen, meat market men, milkmen, breadmen, on their delivery rounds), said courtyard runs east and west and then turns north, taking the form of an "L." As said,

157 S.W. 571

this courtyard is private property, belongs to defendants, being cut off by lattice screens from both Cardinal and Laclede, with latched doors in the screens for ingress to and egress from the courtyard. It is not connected with any public alley. As said, defendants' tenants made common use of this courtyard when occasion called; this in addition to the use mentioned above. A minor or sporadic use also grew up, incident to the Wood tenement, which will be recurred to further on. At a certain place in this courtyard, the locus in quo, it is 8 feet 6 inches wide from wall to wall; i. e., from north to south. The width is less at some other places. Ranged along the sides of this courtyard are breadboxes, gasoline tanks, ash bins (the latter possibly permanent), for the convenience of tenants (we suppose put there by them). There are also some cellarways running east and west lengthwise with the courtyard and hard by the rear building walls, which cellarways lead to the basement cellars of those buildings having such cellars. These cellarways make opening, say, 8 feet long and 2 feet 3 inches wide severally. They have no trapdoors on top but are cut off and guarded from the courtyard by wooden railings or banisters at one end and along one side (the other side being protected by the building wall), and one end was left open at the head of the cellar stairway; the latter leading down, say, 8 feet to the outside cellar door to the basement proper. The upper step of each of these cellar stairs is flush with the paved courtyard; and these stairways were built and arranged, as above described, some years gone, to wit, at the time the group of buildings were constructed by their former owner in accordance with an architect's design.

At the times in hand the ground floor of one of these buildings was in the possession of two brothers, named Wood, as tenants of defendants; the Woods running a grocery there. The cellar under that ground floor was leased with the ground floor itself to them for that purpose, including the right to the use of a stairway leading thereto. In this cellar the Woods stored and kept goods, boxes, etc., and their necessary outside access to this cellar was, as suggested above, by one of the described cellar stairs, opening into the courtyard, and subjected to this private and exclusive use every day about their business.

There was a rear door to Woods' grocery opening on the courtyard. The upper step of the cellar stairway in question (said step being at a right angle to the building) began 9 inches or so west of the west jamb of this rear door, and the door sill of that door was about 2 inches above the level of the courtyard pavement. We take it from the record, including photographs in evidence, that the ordinary line of travel east and west in this courtyard (that is, the customary use) was on about 6 feet of clear space of pavement, to wit, the whole courtyard, saving and except the space taken up next to the rear building walls by ash bins, breadboxes, oil tanks, cellarways, etc. It will thus be seen that to fall into this cellarway any one leaving this rear door would have to turn to the west, directly on stepping out, and in the line of the obstructions on that side, instead of taking pains to go north far enough to get outside the line of said obstructions and into the clear space or line of travel of the courtyard east and west.

In this condition of things, and not otherwise, on a Sunday evening, October 28, 1905, plaintiff (an intelligent housemaid 33 years of age, with good eyes) entered this courtyard from Cardinal on an errand for her mistress, a Mrs. Conley, to get from Woods' grocery some oysters and milk for lunch. Mrs. Conley was one of defendants' tenants, and the rear of her tenement, with windows therein, was on this courtyard and but a few feet away from Woods' rear door and in plain view of said door and cellarway from said windows. Lying right under her eye, plaintiff could see and did see this cellarway from the Conley tenement windows, as said. Moreover, she had been in and out the grocery through this rear door. She admits she knew all the time she lived with Mrs. Conley that this cellarway was open at one end, the end next to Woods' rear door, but she says she did not know how close on the west its upper step was from the door sill of this rear door. All the testimony is to the effect that it was not dark but it was "just getting dusk." We take it the light was such that plaintiff could have seen everything there was to see if she had looked at the immediate time. She says she saw at the very time the banisters of the cellarway and saw the opening at one end where the steps begin, "but did not know it was so close." Her story is that, coming with a bucket in hand to the rear door, she took hold of the doorknob, turned it, and walked in; that she found there the proprietors and some others and "started" to buy what she went for. At that instant, and before trying to buy anything, she remembered "something" and wanted to speak to her mistress about it. So, after saying "goodevening" to the persons in the store, she faced about and stepped, face to the front, straight north out of the door, "just stepped in and stepped out," and as soon as she got out, when her hand was yet on the doorknob, she fell (evidently having stepped to the west or westwardly along the building wall) through the open end of the cellarway headlong down to the foot of the cellar stairs, and thereby badly hurt herself....

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35 practice notes
  • Boillot v. Income Guar. Co., No. 19139.
    • United States
    • Court of Appeal of Missouri (US)
    • 23 Mayo 1938
    ...86. (8) (a) The positive authority of a decision is coextensive only on the facts on which it is founded. Bender v. Weber, 250 Mo. 551, 157 S.W. 570. (b) Judgments of appellate court on one state of facts may not be applied automatically to another state of facts, but, on the contrary, the ......
  • Clark v. Chase Hotel Co., No. 22477.
    • United States
    • Court of Appeal of Missouri (US)
    • 7 Septiembre 1934
    ...premises, including the approaches, is in the lessee." Our Supreme Court appears to have adopted this view. [Bender v. Weber, 250 Mo. 551, 157 S.W. 570.] So, it seems, has the Kansas City Court of Appeals. [Meade v. Montrose, 173 Mo. App. 722, 160 S.W. 11.] We think a Turkish bath comes wit......
  • Van Avery v. Platte Valley Land & Inv. Co., No. 30026.
    • United States
    • Supreme Court of Nebraska
    • 1 Octubre 1937
    ...913;Towne v. Thompson, 68 N.H. 317, 44 A. 492, 46 L.R.A. 748;Meade v. Montrose, 173 Mo.App. 722, 160 S.W. 11;Bender v. Weber, 250 Mo. 551, 157 S.W. 570, 46 L.R.A.(N.S.) 121;Fraser v. Kruger (C.C.A.) 298 F. 693;Land v. Fitzgerald, 68 N.J.Law, 28, 52 A. 229;Goodman v. Town of Provincetown, 28......
  • Trimble v. Spears, No. 40786
    • United States
    • United States State Supreme Court of Kansas
    • 25 Enero 1958
    ...reached different conclusions. Most of them are from Massachusetts which follows a more restrictive rule. Bender v. Weber, 250 Mo. 551, 157 S.W. 570, 46 L.R.A.,N.S., 121; McCain v. Majestic Bldg. Co., 120 La. 306, 45 So. 258; Ryerson v. Bathcate, 67 N.J.L. 337, 51 A. 708, 57 L.R.A. 307; Roh......
  • Request a trial to view additional results
35 cases
  • Boillot v. Income Guar. Co., No. 19139.
    • United States
    • Court of Appeal of Missouri (US)
    • 23 Mayo 1938
    ...86. (8) (a) The positive authority of a decision is coextensive only on the facts on which it is founded. Bender v. Weber, 250 Mo. 551, 157 S.W. 570. (b) Judgments of appellate court on one state of facts may not be applied automatically to another state of facts, but, on the contrary, the ......
  • Clark v. Chase Hotel Co., No. 22477.
    • United States
    • Court of Appeal of Missouri (US)
    • 7 Septiembre 1934
    ...premises, including the approaches, is in the lessee." Our Supreme Court appears to have adopted this view. [Bender v. Weber, 250 Mo. 551, 157 S.W. 570.] So, it seems, has the Kansas City Court of Appeals. [Meade v. Montrose, 173 Mo. App. 722, 160 S.W. 11.] We think a Turkish bath comes wit......
  • Van Avery v. Platte Valley Land & Inv. Co., No. 30026.
    • United States
    • Supreme Court of Nebraska
    • 1 Octubre 1937
    ...913;Towne v. Thompson, 68 N.H. 317, 44 A. 492, 46 L.R.A. 748;Meade v. Montrose, 173 Mo.App. 722, 160 S.W. 11;Bender v. Weber, 250 Mo. 551, 157 S.W. 570, 46 L.R.A.(N.S.) 121;Fraser v. Kruger (C.C.A.) 298 F. 693;Land v. Fitzgerald, 68 N.J.Law, 28, 52 A. 229;Goodman v. Town of Provincetown, 28......
  • Trimble v. Spears, No. 40786
    • United States
    • United States State Supreme Court of Kansas
    • 25 Enero 1958
    ...reached different conclusions. Most of them are from Massachusetts which follows a more restrictive rule. Bender v. Weber, 250 Mo. 551, 157 S.W. 570, 46 L.R.A.,N.S., 121; McCain v. Majestic Bldg. Co., 120 La. 306, 45 So. 258; Ryerson v. Bathcate, 67 N.J.L. 337, 51 A. 708, 57 L.R.A. 307; Roh......
  • Request a trial to view additional results

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