Bowyer v. Te-Co., Inc.

• Decision Date: 10 March 1958
• Docket Number: No. 1,No. 46132,TE-CO,46132,1
• Citation: Bowyer v. Te-Co., Inc., 310 S.W.2d 892 (Mo. 1958)
• Parties: Jake BOWYER, Respondent, v., Inc., a Corporation, Appellant
• Court: Missouri Supreme Court

Page 892

310 S.W.2d 892

Jake BOWYER, Respondent, v. TE-CO., Inc., a Corporation, Appellant.

No. 46132.

Supreme Court of Missouri, Division No. 1.

March 10, 1958.

Chapman & Chapman, Wilton D. Chapman, Thomas W. Chapman, and Adolph K. Schwartz, St. Louis, for appellant.

James W. Jeans, Hullverson, Richardson, Hullverson & Jeans, St. Louis, for (plaintiff) respondent.

HOLLINGSWORTH, Presiding Judge.

Defendant has appealed from a judgment awarding plaintiff the sum of $20,000 for personal injuries sustained when plaintiff's foot slipped and caused him to fall as he stepped upon an allegedly defective stone slab in the paving at the rear entrance of defendant's place of business in the City of St. Louis. Defendant complains of the refusal of the trial court to direct a verdict in its behalf, of error in the admission of evidence, error in the giving and refusal of certain instructions, excessiveness of the verdict, and refusal to permit defendant to amend its answer.

In determining whether there was substantial evidence of defendant's negligence and the alleged excessiveness of the verdict, we consider the evidence most favorable to plaintiff and all inferences that reasonable flow therefrom and disregard defendant's evidence unless it aids plaintiff. So reviewed and considered, the jury reasonably could have found the facts as herein stated.

On the afternoon of August 10, 1954, plaintiff, a grain and dairy farmer, aged 54 years, residing at Keenes, Illinois, rode to St. Louis, Missouri, with Mr. and Mrs. Aaron Compton in the Compton's automobile for the purpose of attending a meeting of Production Credit Corporation, of which plaintiff and Mr. Compton were directors. Plaintiff brought with him for the purpose of having it repaired a machine belt which he had priorly purchased from defendant. Defendant's place of business, a four-story building, is located at 801 North Second Street. The building fronts east and is situate on the northwest corner of North Second and Delmar Avenue. The Comptons stopped their car, headed south, in front of defendant's building, shortly prior to 4 p.m. The day was hot and clear and the pavements were dry. The Comptons remained in their car as plaintiff went into the front office and advised the receptionist of his wish to have the belt repaired. She told him to 'take it back to the rear of the building', 'to go around in back', 'to go to the back door and locate someone to take care of that condition.' Plaintiff never before had seen the rear of defendant's premises. He came out the front entrance, walked south to Delmar, thence west on Delmar upon the brick sidewalk to the rear of the building, which faced an alley. When he reached the alley, he turned to his right and looked for the rear entrance door. That door is situate up a flight of four steps. They are made into a concrete loading dock extending along the rear end of the building and over which one must cross to reach the door. Froming a part of the paved way connecting the brick sidewalk with the steps leading to the rear door is a stone slab 1 1/2 feet in width and 5 feet in length. As plaintiff faced north, looked for and discovered the door, he saw and stepped upon the stone slab. Plaintiff testified that 'when I put the ball of my foot on this stone my foot slipped off to the side--south--caused me to be pitched to my right and I fell.' After falling, plaintiff saw that the stone 'was slippery or smooth and rounded.' That stone, as shown by other evidence in the case, had been in its present location for more than 26 years, is worn smooth and round at its south edge with use and by weather, and 'slopes to the south.'

Defendant's Exhibit 'B' (the camera pointed eastward along Delmar) shows the rear of defendant's building, the (white) stone slab upon which plaintiff's foot slipped and the relationship of the slab to the sidewalk and the rear entrance.

Defendant's Exhibit 'B'

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Plaintiff felt pain when he fell and heard a snap as though a stick were broken. His foot, as he saw after he had fallen, was dislocated to the extent that it pointed outward at a right angle. Plaintiff was taken to the City Hospital. It was there discovered his right ankle was broken. The break was set, and his leg, ankle and foot were placed in a cast. Plaintiff was furnished crutches and, by the Comptons, taken to the meeting of the Production Credit Corporation at the Chase Hotel, which lasted throughout the 11th and 12th of August. Due to pain, he attended but one session, leaving it after a short stay. On the morning of the 11th, he consulted Dr. L. T. Ford at Barnes Hospital. Such further details of plaintiff's injuries as may be necessary to disposition of the case will be hereinafter stated.

On the afternoon of August 12, plaintiff and the Comptons, preparatory to returning to Illinois, went to defendant's offices to get the belt that had been left for repairs. There they talked with Mr. Albert Panhorst, defendant's vice-president. Over objection of defendant, plaintiff and the Comptons testified that Mr. Panhorst advised them that defendant knew the slab was in bad condition but had been putting off repairing it.

On cross-examination plaintiff testified that he was watching where he was going and also watching to find the door and the steps to go up to it; that as he 'came up there' nothing obstructed his vision of the stone; that he was looking as anyone else would look in the general direction of where he was going and he did not 'pinpoint' the slab and stop to look at it.

Before consideration of the defendant's contention that there was no showing of its negligence, we should determine its contention that the court erred in admitting into evidence the testimony that defendant's vice-president had told plaintiff that the stone slab was in bad condition and defendant had been putting off repairing it. Defendant cites Redmon v. Metropolitan St. Ry. Co., 185 Mo. 1, 84 S.W. 26, and Kenney v. J. A. Folger & Co., Mo.App., 192 S.W.2d 73. In the Redmon case, the plaintiff was permitted to testify that immediately after being injured by the sudden stopping of defendant's streetcar, defendant's conductor told him that the cause of the sudden stopping was that a coupling pin had fallen from the car into the slot rall. In the Kenney case, the plaintiff had been struck by defendant's truck. Her witness was permitted to testify, in an analogous situation, that defendant's truck driver said, 'No, it was my fault.' Neither of these cases is in point.

We think the evidence was admissible for two reasons: (1) To show an admission by an executive officer of defendant of its prior knowledge of the condition of the stone slab for sufficient length of time to have remedied the condition. See Yarbrough v. Wisconsin Lbr. Co., Mo.App., 211 S.W. 713, 714[5-7]; State ex rel. S. S. Kresge Co. v. Shain, 340 Mo. 145, 101 S.W.2d 14, 17. (2) To show defendant's dominion over the stone, the importance of which fact will hereinafter become apparent. Moreover, defendant, in any event, definitely waived any right to assert error in the admission of said statement by introducing and reading into evidence as admissions of plaintiff portions of his deposition, including:

'A. He (Panhorst) was discussing with me the condition that the walk was in.

'Q. I see. And what did he tell you? A. He told me that it had been in bad condition for quite a while and that they had been intending to fix it but they had been putting it off just like we do things around the home.'

Defendant does not in this court contend that plaintiff was guilty of contributory negligence as a matter of law. In support of its contention that the evidence does not make a submissible case of its failure to exercise ordinary care, defendant cites Main v. Lehman, 294 Mo. 579, 243 S.W. 91; Cash v. Sonken-Galamba Co., 322 Mo. 349, 17 S.W.2d 927; Ilgenfritz v. Missouri Power & Light Co., 340 Mo. 648, 101 S.W.2d 723; Stoll v First National Bank of Independence, 345 Mo. 582, 134 S.W.2d 97; Hudson v. Kansas City Baseball Club, 349 Mo. 1215, 164 S.W.2d 318, 142 A.L.R. 858. The theory of disposition of the Main case, supra, is set forth in this statement of the court, 243 S.W. loc. cit. 93: 'The mere fact that there was a step in the toilet six inches high, which plaintiff would have to ascend and descend, was not in itself evidence of a want of due care on defendant's part, because such steps are usual in dwellings and store buildings.' The Cash case, supra, was ruled upon a finding of plaintiff's contributory negligence as a matter of law rather than upon the question of defendant's non-negligence. Neither of those cases is helpful to defendant upon the issue of its negligence.

In the Ilgnfritz case, supra, it was said, 101 S.W.2d loc. cit. 728, that it was not negligence 'to merely wax an office floor when it is obvious to all who use it that it is waxed; when no unusual amount or kind of wax is used so as to make it slicker than waxed floors of like character * * *.' In the Stoll case, the court said of plaintiff's case, 134 S.W.2d loc. cit. 102: 'She saw and observed that condition of the floor and steps and had observed that condition previously. There was no foreign substance on the floor and she met no unexpected condition. The evidence fails to show any negligence of appellant or the breach of any legal duty owed by appellant to respondent.' Neither of those cases is in point in the instant case.

The proprietor of a business place is charged with the duty to exercise ordinary care to keep his premises in a reasonably safe condition for the use of his invitees. 'The basis of the defendant-proprietor's liability is defendant's superior knowledge of an unreasonable risk of harm of which the invitee does not or in the exercise of ordinary care should not know. Such a defendant is not liable for injuries due to dangers which are...