Cannon v. S.S. Kresge Co.

• Decision Date: 07 March 1938
• Docket Number: No. 19098.,19098.
• Citation: 116 S.W.2d 559
• Parties: JOHN CANNON, RESPONDENT, v. S.S. KRESGE COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

116 S.W.2d 559

JOHN CANNON, RESPONDENT, v. S.S. KRESGE COMPANY, APPELLANT.

No. 19098.

Kansas City Court of Appeals. Missouri.

March 7, 1938.

Appeal from Jackson Circuit Court. — Hon. Darius A. Brown, Judge.

AFFIRMED.

Allan R. Browne for respondent.

Henry L. Jost and Roger C. Slaughter for appellant.

REYNOLDS, J.

This appeal comes to us from the Circuit Court of Jackson county at Kansas City, Missouri.

The action is one by the plaintiff to recover damages for the alleged loss of his wife's society, service, "and consortium," claimed to have resulted from personal injuries inflicted on her by reason of alleged acts of negligence on the defendant's part. The petition was filed in the Circuit Court of Jackson County at Kansas City, Missouri, on November 13, 1935.

The trial was before the judge of the court with a jury and resulted in a verdict and judgment for the plaintiff in the sum of $2687, from which judgment, after unsuccessful motions for a new trial and in arrest of judgment, the defendant prosecutes this appeal. The negligence charged and relied upon fully appears from the plaintiff's petition, which is as follows:

"Plaintiff states that he is the husband of Pearl Cannon, hereinafter known and described as the `injured.'

"Plaintiff states that defendant is a corporation duly organized and existing according to law.

"For cause of action against defendant, plaintiff states that on or about the 10th day of November, 1934, while injured was a customer of the store occupied by defendant, and leaving the premises occupied by defendant, by means of a door in the north side of defendant's store located at or near 3917 Main Street in Kansas City, Missouri, and while on and stepping from a step in the entrance way of said doorway, and which was a part of the entrance and exit at said place from said store, and which exit opened onto a parking station which is for the benefit of patrons of said store and other parties, she was negligently caused by defendant to fall and injure herself by reason of the negligence of defendant as hereinafter set forth.

"The point at which she fell was on and as she was stepping off of the step just outside the door, as mentioned above, which step constituted a part of the exit from said store.

"The negligence of defendant was as follows:

"1. Defendant negligently failed to keep and maintain said exit, including said step, at said time and place, in a reasonably well lighted condition so as to be reasonably safe for injured and others stepping and walking thereon, and negligently failed to provide a railing.

"Defendant negligently caused, allowed, and permitted said step and exit, including said step, at said time and place to be and remain in a not reasonably safe, and dangerous condition, and as an unsafe exit for customers of said store, in that the height of said step in said exit was irregular, being about level with the parking ground at the west end of said step and being about six inches above said parking ground at the east end, said parking ground being rough and uneven and sloping and the footing thereon insecure, so that persons, including injured, stepping thereon, were likely to, and would fall, said place being dark as aforementioned and said negligent condition caused and contributed to cause injured to lose her footing at said time and place and fall and injure herself. Said condition had been and remained in said negligent condition for a long time prior to said accident, and long enough for defendant, by the exercise of reasonable ordinary care under the circumstances to have known of and discovered the same in reasonable time thereafter to have reasonably remedied or reasonably repaired the same and thereby have avoided injuring injured, yet defendant negligently failed to so reasonably repair or reasonably remedy said dangerous condition, and as a direct result of said negligence, injured fell at said time and place and was injured as hereinafter set forth.

"The negligence of defendant as herein mentioned directly caused the following injuries and damage to injured:"

The petition at this point proceeds with a recital of the injuries alleged to have resulted from the negligence charged and of the damages to the plaintiff in the sum of $3000, for which judgment is sought.

The amended answer is a general denial, coupled with a specific denial by the defendant of any dominion or control of the premises upon which the plaintiff's wife was alleged to have been injured at the time she was injured as set out and described in the petition, setting up that the dominion and control of such premises were in the Ella Investment Company, a corporation, and denying that, at the time and place of her injury, she was an invitee of the defendant or was engaged in the transaction of any business with the defendant but, upon the other hand, averring that she was, at such time and place, an invitee of the said Ella Investment Company. The amended answer in substance further alleges that the plaintiff had asserted the claim and demand sued upon herein against the Ella Investment Company and that such claim and demand had been fully settled and discharged by said company and said company released from any liability on account thereof. The amended answer further tenders a plea of contributory negligence upon the part of the plaintiff's wife, in that she carelessly failed to watch the point from which she was stepping and the step upon which she was stepping at the time she received her injuries.

The plaintiff replied to the defendant's amended answer by way of a general denial.

The evidence substantially shows the following situation:

The Ella Investment Company, a Missouri corporation of which one David Werby was president, was the owner in fee of a large tract of land in Kansas City, located at the southeast corner of Thirty-ninth and Main Streets. Thereon, it constructed a two-story building, the ground floor of which was devoted to the conduct of merchandising shops, the upper floor to office suites. Most of the stores in this building fronted west on Main Street. One of these stores was occupied by the defendant. All of these stores had back doors which opened outward on a large automobile parking lot, reserved and operated by the Ella Investment Company for the use and accommodation without charge of persons desiring to drive and park their automobiles therein. Entrance was gained to said parking ground from the north, on the Thirty-ninth Street side, and around the east end of that part of the building which fronted north on that street. The surface of the parking lot was of cinders and gravel and sloped from the rear of the building west toward the east and was not smooth.

The defendant's occupancy was under a written lease. Its business was popularly known as a "Five and Ten Cent Store." The defendant's store building had a rear door opening outward into said parking lot, about three feet in width. Above this door on the outside was a sign, "S.S. Kresge Co., Entrance to Main St." There was no light over the door. Just below the sill of the door on the outside, there was a slab which formed the threshold to the door. The only way to get into the store from the parking lot was over this threshold, from which you stepped up into the door; and the only way to get out of the door, in making an exit from the store building to the parking lot, was over this step or slab. The threshold was about three feet wide, north and south. The west side of the threshold was about three inches high or above the ground; and the east side about fourteen inches above the ground, making an abrupt pitch in a brief space. The west one-half of the step was level, and the ground pitched from there very rapidly both to the east and the north. The threshold was a little wider east and west than the door. The parking lot sloped north and east from the building. The step-up from the threshold to enter the door was two or three inches above the slab on the west side.

The accident in question happened at the rear door of the Kresge store on the north side, the door opening into the parking lot from said store.

The evidence further shows that, on the evening on which the plaintiff's wife was injured, she and her husband drove in their car from Thirty-ninth Street into the parking lot of the Ella Investment Company in the rear of the store building and parked their automobile in said lot, just a little west of the door. The parking lot was maintained as a free parking ground for the public and those having business to do with the lessees of the Ella Investment Company in the block. The accident occurred around 7:30 o'clock P.M., which was after dark at that time of the year. Another car was parked between the plaintiff's car and the rear door or entrance to the defendant's place of business. After having parked their car, the plaintiff and his wife walked together around the car between their car and the rear door of the defendant's store building over the surface of the parking lot and then upon the slab leading to the door, and stepped up onto the sill of the door and through the door into the store. The plaintiff's wife had never entered the store in that way before. She stopped in the store, where she did some shopping. The plaintiff passed through the store without stopping and out into Main Street. He soon returned to the inside of the store, and he and his wife left the store by the rear door through which they had entered, over which door in the store building was the word, "Exit." As she walked out, she had packages in her hand which she had purchased in the store. She stepped from the door sill down to the concrete slab and from there to the ground; and the plaintiff stepped down about the same time, either in front of or behind her. It appears that he stepped around and ahead of her while still on the slab. As he stepped from the slab to the surface of the parking lot, sh...