Boneau v. Swift & Co.

• Decision Date: 03 January 1934
• Docket Number: No. 22611.,22611.
• Citation: 66 S.W.2d 172
• Parties: BONEAU v. SWIFT & CO.
• Court: Missouri Court of Appeals

66 S.W.2d 172

BONEAU v. SWIFT & CO.

No. 22611.

St. Louis Court of Appeals. Missouri.

January 3, 1934.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be published in State Reports."

Action by Albert P. Boneau against Swift & Co. From a judgment of nonsuit, the plaintiff appeals.

Affirmed.

Mason & Flynn and I. R. Goodman, all of St. Louis, for appellant.

A. A. Alexander, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an appeal by plaintiff from a judgment of nonsuit which was entered against him in his action for damages for personal injuries sustained by him through the alleged negligence of defendant.

Plaintiff, at the time of his injury on December 4, 1930, was a government inspector of live stock in the National Stockyards in National City, Ill. Defendant, Swift & Co., is a meat packing corporation which maintains its plant closely adjacent to the stockyards in question; the two properties being separated by a street some fifty or sixty feet in width.

On the date mentioned, plaintiff's duties had required him to inspect hogs in pens located on the property of the National Stockyards Company; some of the hogs belonging to defendant and others to Armour & Co. It appears that the hogs were not permitted to be moved out of the stockyards and into the plants of their respective owners until after they had been inspected and approved by a government inspector.

Following the completion of his inspection, which was about 2 o'clock in the afternoon, it was necessary for plaintiff to make a report to his superiors in the government office, the exact location of which with reference to defendant's plant is quite indefinitely pointed out in the record. All that affirmatively appears is that the office was located at the back part, or on the north side, of the plant, in a building separate from the main plant. Asked whether the office was on the inside or outside of the plant, plaintiff answered only that it was facing on the street. But, wherever the office was located, whether on land owned by defendant or not, there is no proof, and in fact no contention, that defendant was in any wise in control of the office, regardless of what the character of the government's occupancy of it may have been.

In order to reach the government office, plaintiff took a course which led him through a gate into defendant's private property, and thence over a dock or loading platform adjoining one of defendant's warehouses; the dock being some three hundred feet in length, seven feet in width, and four or four and one-half feet above the street level. There were steps at either end of the dock, and from the north end a gravel walk led down to the government office. The street alongside the dock, which was seemingly known as Taggert avenue, was from fifty to sixty feet in width, and was used primarily for railroad and automobile traffic in moving meat products, rather than as a general thoroughfare. In fact it appears that the movement of traffic to the north of the dock would be impossible on account of the construction of a connecting bridge across the street at some undetermined point south of the government office; the bridge being elevated only two and one-half to three feet above the ground. At one point in his testimony plaintiff stated that he had never gone under the bridge; at another that he had gone under it on one occasion.

It appears quite positively in the record that, aside from the street and the dock in question, there were at least two other routes that plaintiff might have taken in going to the government office; one a road paved with brick which plaintiff claimed he did not know of, and the other a dock on the east side of the street which was less direct than the dock chosen by plaintiff. The evidence does seem to disclose that both of such routes would likewise have been upon private property, but the fact that they were in existence serves at least to dispel the idea that plaintiff, on account of the arrangement of the premises, was confined to the particular route which he selected.

Opening from the warehouse out upon the dock upon which plaintiff was walking just prior to his injury were a number of iron doors about three and one-half feet in width. Just as plaintiff, walking midway of the dock, was in the act of passing one of the doors which was located some fifty or sixty feet north of the steps by which he had come upon the dock, the door was suddenly thrown open from inside the warehouse, striking plaintiff with such force as to knock him off of the dock down upon the street below, where he received the injuries for which he has sued.

Plaintiff's testimony was that for the last ten or twelve years of his employment as an inspector he had spent on an average as much as a month out of each year in the portion of the stockyards from which he had come when injured, and that his usual practice and custom had been to take the course through defendant's property and over the dock when going from the stockyards to the government office. He also testified that in so using the dock, he customarily met the other inspectors upon it, that people were to be found going backwards and forwards over the dock during the greater part of the day, and that at the usual time of the afternoon when he would use the dock there would be perhaps an average of a dozen persons to be seen upon it, though on this occasion he did not recall having seen any one walking along it before he was injured. It is a significant fact, however, that save for the government inspectors, plaintiff did not identify the persons he had seen using the dock as having been other than defendant's own employees. It was also shown that there were a number of hand trucks upon the dock, probably used for moving meat products out of the warehouse and over the dock to the waiting trucks and railroad cars.

Plaintiff admitted that he carried on no business with defendant, that all of his business was with the government, and that the reason he used the dock on the day in question was because he had used it before, because he had seen the other inspectors use it, and because it furnished a more direct and convenient route to his destination.

Plaintiff's petition, which was drawn upon the theory that plaintiff had gone upon the dock in the course of his employment, with the knowledge and consent and by invitation of defendant, after stating that the injury was received in Illinois, and after generally describing the manner of its occurrence, alleged negligence of defendant in throwing the door open across the dock without exercising ordinary care to ascertain whether plaintiff or any other person was in a position to be struck by the door when it was opened, though defendant knew, or in the exercise of ordinary care could have known, that plaintiff and many other persons lawfully upon the premises were passing along the dock, and were likely to be in a position to be struck if it was thrown open without a warning being given.

Following a general denial, the answer set up that the substantive rights and liabilities of the parties were controlled by the law of Illinois, wherein the cause of action, if any, had accrued. The answer was based upon the theory that plaintiff, at the moment of his injury, was no more than a bare licensee as to his use of the dock; and numerous Illinois decisions were pleaded, having to do with the question of when one is a licensee, and the duty of the landowner towards him, as such questions have been determined in Illinois. The answer concluded with a plea of contributory negligence, which is no longer of consequence so far as concerns the implications from the evidence.

By way of reply, plaintiff denied that the Illinois law was as alleged in the answer, and that under the same he was not entitled to recover, denied that he was but a mere licensee and not an invitee, and denied that his injuries were the result of his own negligence directly contributing thereto.

Then followed the trial, the sustaining of the demurrer to the evidence at the close of plaintiff's case, the taking of the involuntary nonsuit, the timely motion to set the same aside and its overruling, and plaintiff's appeal to this court as has been heretofore indicated.

Of course, this being a transitory common-law action for personal injuriess sustained in Illinois, the law of that state, if properly invoked, will govern except as to matters of practice and procedure. Moore v. East St. Louis & S. Ry. Co. (Mo. App.) 54 S.W. (2d) 767; Morris v. Chicago, R. I. & P. Ry. Co. (Mo. App.) 251 S. W. 763. Plaintiff argues, however, that in the state of the record the Illinois law is not before us, since, though the same was duly pleaded in defendant's answer, the case went off on demurrer to plaintiff's evidence, without an opportunity being afforded de...