Cunningham v. Bellerive Hotel, Inc.

• Decision Date: 12 February 1973
• Docket Number: No. 2,No. 56339,56339,2
• Citation: 490 S.W.2d 104
• Parties: James M. CUNNINGHAM, Respondent, v. BELLERIVE HOTEL, INC., a Missouri corporation, Appellant
• Court: Missouri Supreme Court

Page 104

490 S.W.2d 104

James M. CUNNINGHAM, Respondent, v. BELLERIVE HOTEL, INC., a Missouri corporation, Appellant.

No. 56339.

Supreme Court of Missouri, Division No. 2.

Feb. 12, 1973.

Robert L. Shirkey, James C. Morris, Shirkey, Morris & Cox, Kansas City, for respondent.

John C. Risjord, Thomas F. Gordon, Gordon, Adams, Niewald & Risjord, Kansas City, for appellant.

HENRY I. EAGER, Special Commissioner.

This action is one for damages resulting from a fall in the parking area of the defendant on the evening of October 4, 1966. There was a nine-man jury verdict for the defendant; the trial court set aside the verdict and judgment and granted a new trial on the ground that the verdict was against the greater weight of the credible evidence, and also upon an additional ground, which we shall mention later. The prayer of the petition was for $35,000 and the notice of appeal was filed prior to January 1, 1972. We have jurisdiction. It will be necessary for us to decide whether the plaintiff made a submissible case.

Plaintiff was the President of James M. Cunningham, Inc., a manufacturer's agent for fabrics and wallpaper. As such, he sold direct to interior decorators, decorating departments of stores, etc.; he lived in Oak Park, Illinois, but exhibited his products over a wide area, including Kansas City. There, his custom over the years had been to set up his exhibits at the Bellerive Hotel, and invite his prospective customers to view them there. In recent years the plaintiff had traveled and brought his material by car, and his visits usually lasted about a week. The Bellerive was located at the northeast corner of Armour and Warwick Boulevards in Kansas City, facing south; its parking area, holding perhaps 40 to 50 cars, was back of the building to the north, and across an alley. Parking spaces were marked off along the east and west sides, with two rows down the center. The entrance and exit (combined) consisted of an open space in the center of the south end, immediately back of the hotel. The paving of the lot was blacktop. The lighting consisted of four lights on a pole somewhere near the center of the lot, and a single bulb at the back door of the hotel. Plaintiff had used this lot on previous occasions, perhaps eight to eleven times in five years.

On the day in question plaintiff and his four customers had planned to have dinner at the home of one of the customers, Mr. Lewis J. Vander Kolk, who lived in Prairie Village, Kansas. Mr. Vander Kolk and a Mr. Payne left the display room first, picked up Vander Kolk's car on the street and drove it around to a position just inside the parking area, headed northeast. He was to drive ahead of the others so that they could follow him home. Plaintiff and the other who men were delayed slightly because they could not get out of the rear door of the hotel. They proceeded to the lot, where the other two turned left toward the car of one of them, while plaintiff walked over near Vander Kolk's car to explain the delay. He then turned and started to join the other two at their car, walked westerly or northwesterly rather close to the alley for about six or seven steps, and then fell rather violently to the pavement. He testified that he had fallen in 'a rather large hole' in the paving which he only observed after he fell; also, that he was thrown forward violently as he fell. The hole was variously described as about two by two and one-half feet, as 14 to 18 inches long and not quite so wide, and as four and one-half feet in diameter; the depth was described as from two to four or five inches, and also as three inches. Plaintiff, who only observed it immediately after he fell and, while as he said he was in it, could not state the depth. The place was referred to as a hole, an indentation, a chuck hole and a depression. The record indicates that the edges were not broken but sloping. It was in plaintiff's line of travel and its color was the same as the paving elsewhere. One witness who had been an employee of defendant in charge of its building and grounds at the time testified: that the 'indentation' had been there for six years to his knowledge; that he occasionally filed other cracks, crevices and indentations, but apparently had done nothing to this one prior to the fall. Plaintiff attempted over objection to show that the hole had been filled in since; the objection was sustained, and that question is not before us on this appeal, although the jury perhaps understood the contention. Three photographs of the lot, one greatly enlarged, were received. They show very little as to the nature of the hole or depression and are not dated. Markings were placed on these to show the approximate location of the hole and of Vander Kolk's car. The depression was not far inside the parking lot. These exhibits appear to indicate some repair at the site of the hole or depression.

The extent of the darkness at the time was described as 'relatively dark,' 'dusk,' 'getting on toward darkness,' as 'almost totally nighttime,' and as 'not pitch dark.' As to the artificial lighting plaintiff testified that there was a 'diffused light' in the lot, but that 'probably the light was not sufficient at that spot'; he also said: that, as he recalled, there was a car near the area where the hole was, and that it undoubtedly 'cast a shadow of some kind'; that the only reason he could give for not seeing the hole was that the light was not sufficient at that spot. He could see the car toward which he was walking. Plaintiff had no notice of the condition and testified that he was aware of nothing to cause him any concern. He further testified that he was looking where he was going, in the way one would normally walk, and looking in the direction in which he was walking, but was not looking down or concentrating on the paving immediately in front of him; and that he might have seen the hole had he done so. Plaintiff received substantial injuries, principally the fracture of and the loss of a portion of his right kneecap. The extent of his injuries is not material here.

The trial court overruled defendant's motion for a directed verdict. As already stated, however, the Court set aside the verdict and judgment for defendant and granted a new trial on the ground that the verdict was against the weight of the 'credible evidence.' In such event we are required to examine the record to see if there was substantial evidence to support a verdict for plaintiff, for it is only where there is not such substantial evidence that we may hold the ruling to be an abuse of discretion. Overbey v. Fodde, Mo., 420 S.W.2d 510; Leonard v. Bartimus, Mo.App., 463 S.W.2d 579; Nance v. Kimbrow, Mo.App., 476 S.W.2d 560; Clark v. Quality Dairy Co., Mo., 400 S.W.2d 78.

Defendant contends that plaintiff made no submissible case, because (1) no actionable negligence was shown; and (2) plaintiff was guilty of contributory negligence as a matter of law. We first consider (1). The liability of an owner or possessor of land to an invitee is based primarily upon his superior knowledge of a danger which he knows or should...