Brown v. Reorganization Inv. Co.

• Decision Date: 10 November 1942
• Docket Number: 38101,38245
• Citation: Brown v. Reorganization Inv. Co., 350 Mo. 407, 166 S.W.2d 476 (Mo. 1942)
• Parties: W. E. Brown, Plaintiff-Appellant-Respondent, v. Reorganization Investment Company, a Corporation, Defendant-Appellant, and Thomas N. Packs, Defendant-Respondent
• Court: Missouri Supreme Court

166 S.W.2d 476

350 Mo. 407

W. E. Brown, Plaintiff-Appellant-Respondent, v. Reorganization Investment Company, a Corporation, Defendant-Appellant, and Thomas N. Packs, Defendant-Respondent

Nos. 38101, 38245

Supreme Court of Missouri

November 10, 1942

Rehearing Denied December 1, 1942.

Appeal from Circuit Court of City of St. Louis; Hon. James F Nangle, Judge.

Affirmed as to defendant Reorganization Investment Company and reversed and remanded as to defendant Packs.

Thomas J. Cole and Walter N. Davis for plaintiff-appellant W. E. Brown in Case No. 38101.

(1) The court erred in giving and reading to the jury Instruction 10 at the instance and request of defendant Packs, because the evidence did not justify a finding by the jury that the wooden horses were not under the control of said defendant. The horses were placed there by the Arena with Packs' consent for his use and they were used by Packs to facilitate the taking of tickets and the entry of invitees to the wrestling exhibition given by him. Placed there with his consent and used by him for the purposes of the exhibition said horses were then being used by him and under his control. Young v. Waters-Pierce Oil Co., 185 Mo. 634, 84 S.W. 929; Geismann v. Electric Co., 173 Mo. 654. (2) The court erred in reading to the jury Packs' Instruction 10, because principal cannot delegate a duty devolving upon him. Inasmuch as Packs was the promotor of the wrestling exhibition and used the equipment placed there by the Arena, it was his nondelegable duty to exercise ordinary care to protect the invitees and see to it that they were not subjected to risks of injury. Geismann v. Electric Co., 173 Mo. 654; Howard v. S. C. Sacks, Inc., 76 S.W.2d 460; Loehring v. Westlake Const. Co., 118 Mo.App. 163, 94 S.W. 747. (3) The negligence of both defendants was combined and concurrent and was the proximate cause of plaintiff's injury. Negligence is predicated on what should have been anticipated. Consequently Packs' Instruction 10 constituted error and should not have been given. McCollum v. Winnewood, etc., Co., 332 Mo. 779, 59 S.W.2d 693; Young v. Waters-Pierce Oil Co., 185 Mo. 634, 84 S.W. 929.

Leahy, Walther & Hecker and William O'Herin for respondent Thomas N. Packs in Case No. 38101.

(1) There was competent evidence to support the instruction of defendant Packs to the effect, that if the jury found that the wooden horses were not under the control of this defendant and were not placed in the position they were at the time of the accident by his employees or anyone subject to his direction or control, then he was not liable. This instruction was properly given and the jury having found in his favor, the judgment entered in favor of said defendant should not be disturbed. Marston v. Boston Publishing Co., 171 N.E. 466, 271 Mass. 307; Texas Consolidated Theatres, Inc., v. Slaughter, 143 S.W.2d 659; Clussman v. Long Island R. Co., 9 Hun, 618; Thomas v. Springer, 134 A.D. 640. (2) The wooden "horse" over which plaintiff stumbled was open and obvious. Plaintiff had knowledge of its presence prior to his fall. There was no superior knowledge on the part of this defendant with respect to the instrumentality which occasioned plaintiff's injuries, as all information with respect to the condition was as well known to the plaintiff as it was to the defendants. This being true, under the law of this State there is no liability and defendant Packs' demurrer at the close of the whole case should have been given. Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278; Main v. Lehman, 294 Mo. 579, 243 S.W. 91; Lamberton v. Fish, 148 S.W.2d 544; Murray v. D'Oench Co., 347 Mo. 365, 147 S.W.2d 623; Stoll v. First Natl. Bank, 345 Mo. 582, 134 S.W.2d 97; Lindquist v. Kresge Co., 345 Mo. 849, 136 S.W.2d 303; Boyd v. Logan-Jones Co., 340 Mo. 1100, 104 S.W.2d 348; Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369. (3) Plaintiff, with full knowledge of the presence of the wooden "horse," took a step backward in turning and stumbled over it. Therefore, he was guilty of contributory negligence as a matter of law. Cash v. Sonken-Galamba Co., 322 Mo. 349, 17 S.W.2d 927; Waldmann v. Skrainka Const. Co., 289 Mo. 622, 233 S.W. 242; Mullen v. Sensenbrenner, 260 S.W. 982.

A. B. Lansing and Moser, Marsalek & Dearing for appellant Reorganization Investment Company in Case No. 38245.

(1) The wooden "horse" over which plaintiff stumbled and fell was not only obvious, but plaintiff saw it before he fell and its presence was actually known to him; therefore, plaintiff had all the information which the defendant Reorganization Investment Company had touching the condition complained of and the care required to use the premises. There being no superior knowledge on the part of said defendant, its demurrers to the evidence should have been sustained. Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278; Murray v. D'Oench Co., 347 Mo. 365, 147 S.W.2d 623; Cash v. Sonken-Galamba Co., 322 Mo. 349, 178 S.W.2d 927; Ilgenfritz v. Mo. P. & L. Co., 340 Mo. 648, 101 S.W.2d 723; Boyd v. Logan Jones Dry Goods Co., 340 Mo. 1100, 104 S.W.2d 348; Stoll v. First Natl. Bank, 345 Mo. 582, 143 S.W.2d 97; Lindquist v. Kresge Co., 345 Mo. 849, 136 S.W.2d 303; 20 R. C. L. 56, sec. 52; Lamberton v. Fish, 148 S.W.2d 544; Main v. Lehman, 294 Mo. 579; Vairo v. Vairo, 99 S.W.2d 113; Reddy v. Jos. Garavelli, Inc., 232 Mo.App. 226, 102 S.W.2d 734; Beitch v. Central Terminal Co., 122 S.W.2d 94; Cates v. Evans, 142 S.W.2d 654. (2) In failing to look where he was stepping, with knowledge of the presence and proximity of the "horse," plaintiff was guilty of contributory negligence as a matter of law. Cash v. Sonken-Calamba Co., 322 Mo. 349, 17 S.W.2d 927; Mullen v. Sensenbrenner, 260 S.W. 982; Waldmann v. Skrainka Const. Co., 289 Mo. 622; Wheat v. St. Louis, 179 Mo. 572; Welch v. McGowan, 262 Mo. 709; Heidland v. Sears Roebuck Co., 233 Mo.App. 874, 110 S.W.2d 795. (3) The premises in question were rented by defendant Reorganization Investment Company to defendant Packs. Packs took the premises as he found them -- for better or worse. As to Packs, the doctrine of caveat emptor applies. Plaintiff was an invitee or guest of Packs. He stands in the shoes of Packs and, as against Reorganization Investment Company, his rights are no greater than those of Packs. Mahnken v. Gillespie, 329 Mo. 51, 43 S.W.2d 797; Bender v. Weber, 250 Mo. 551, 157 S.W. 570; Meade v. Montrose, 173 Mo.App. 722, 160 S.W. 11. (a) Except in cases of concealed defects not easily discovered, but known to the landlord and which he ought to disclose, the landlord is not liable to his tenants or their invitees for renting premises not in a reasonably safe condition. Mahnken v. Gillespie, supra; Bender v. Weber, supra; Kohnle v. Paxton, 268 Mo. 463, 479, 188 S.W. 155; Lahtinen v. Continental Bldg. Co., 339 Mo. 438, 97 S.W.2d 102. (b) The wooden "horse" not only was obvious, but its presence was actually known to plaintiff and it could not constitute a "concealed defect" for which a landlord would be liable to his tenant or the latter's invitee. Authorities, supra. (c) Even if the position and presence of the wooden "horse" could be construed as negligence, only Packs could be held liable because he and his employees were using it and it was his employee who put it in the place where plaintiff stumbled over it. (4) Plaintiff's Instruction 1 is erroneous because (a) it contains unwarranted assumptions of fact; (b) it omits essential findings of fact, and (c) it is confusing.

Thomas J. Cole and Walter N. Davis for plaintiff-respondent W. E. Brown in Case No. 38245.

(1) Under the facts and circumstances in this case and under the germane cases and rules of law, plaintiff was not guilty of contributory negligence as a matter of law. Plaintiff's negligence was, at least, a jury question. (a) As a general rule, one is not required to look for danger when he has no cause to anticipate danger, or when danger does not exist except it be caused by the negligence of another. There is nothing in the evidence to cause plaintiff to anticipate the negligent projection on the horse over which he tripped. He did not see the projection and one cannot be summarily charged with anticipating the negligence of another. Crawford v. K. C. Stock Yards Co., 215 Mo. 594, 114 S.W. 1057; Cento v. Security Bldg. Co., 99 S.W.2d 1; State ex rel. Elliott Dept. S. Co. v. Haid, 330 Mo 959, 51 S.W.2d 1015; Barrett v. Lake, etc., Co., 174 N.Y. 310, 66 N.E. 968; State ex rel. v. Hughes, 144 S.W.2d 84; Bankhead v. 1st Natl. Bank, 137 S.W.2d 594; Willig v. C., B. & Q. R. Co., 137 S.W.2d 430; Kellogg v. H. D. Lee Mercantile Co., 160 S.W.2d 838; Cordray v. City of Brookfield, 334 Mo. 249, 65 S.W.2d 938; Long v. F. W. Woolworth Co., 159 S.W.2d 619; Pettyjohn v. Interstate, etc., Co., 161 S.W.2d 248; Perringer v. Lynn Food Co., 148 S.W.2d 601; McFetridge v. Kurn, 125 S.W.2d 912; Blackwell v. J. J. Newberry Co., 156 S.W.2d 14. (b) Unless the evidence is such that all reasonable men would say, drawing inferences from his conduct, that plaintiff was guilty of contributory negligence as a matter of law, then such negligence was a jury question. The test is the actions of an ordinarily or reasonably prudent man under like or similar circumstances. Whether plaintiff acted as an ordinarily or reasonably prudent man under the circumstances in this case was a jury question. Young v. Waters-Pierce Oil Co., 185 Mo. 634, 84 S.W. 929; Blackwell v. J. J. Newberry Co., 156 S.W.2d 14; Long v. F. W. Woolworth Co., 159 S.W.2d 619; Willig v. C., B. & Q. R. Co., 137 S.W.2d 430; Kellogg v. H. D. Lee Mercantile Co., 160 S.W.2d 838; Cordray v. City of Brookfield, 334 Mo. 249, 65 S.W.2d 938. (2) It was not negligence as a matter of law for plaintiff to take a step backward under the circumstances of this...