Cunningham v. Hayes

• Decision Date: 01 February 1971
• Docket Number: No. 25388,25388
• Citation: 463 S.W.2d 555
• Parties: Thomas Michael CUNNINGHAM, a minor, by His Next Friend, Charlotte Cunningham, Woodrow Cunningham and Charlotte Cunningham, Plaintiffs-Respondents, v. Kenneth L. HAYES, d/b/a Marshall Auto Salvage, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 555

463 S.W.2d 555

Thomas Michael CUNNINGHAM, a minor, by His Next Friend Charlotte Cunningham, Woodrow Cunningham and Charlotte Cunningham, Plaintiffs-Respondents, v. Kenneth L. HAYES, d/b/a Marshall Auto Salvage, Defendant-Appellant.

No. 25388.

Kansas City Court of Appeals, Missouri.

Feb. 1, 1971.

Donald S. Huff, Huff & Huff, Marshall, for plaintiffs-respondents.

A. Lamkin James, James & Butterfield, Marshall, Christian F. Stipp, Carrollton, for defendant-appellant.

SHANGLER, Presiding Judge.

Plaintiff Thomas R. Cunningham, then seventeen years of age, was seriously injured on premises occupied and used by defendant Kenneth L. Hayes in the conduct of his auto salvage business. Suit was brought on the minor's behalf, as well as their own, by his parents. Verdicts totalling $15,000 were returned for plaintiffs and judgment was entered accordingly. Thereafter, the trial court, having concluded it had committed error both in having failed to instruct on measure of damages and in having failed to define 'negligence' as used in plaintiffs' verdict-directing instructions, ordered a new trial on defendant's motion. Plaintiffs appeal from that judgment. Defendant Hayes appeals from the denial of his alternative motion to have judgment entered in accordance with his motion for directed verdict.

Defendant's business premises, located in the City of Marshall, Missouri, consisted of an office and ten acre expanse used as a salvage yard. No barrier separated them, so there was unimpeded access from the office, located at one end of the yard, to the yard itself. The record does not disclose any other physical characteristics of the premises, but none is needed for an informed determination of the issues.

The minor plaintiff, Thomas, had purchased the frame of a dune buggy (a vehicular contrivance of sorts) and had arranged with defendant to remove the engine from it. The price had been settled on. Since it was to have been available on the day of the casualty, plaintiff had come to see about delivery. (Actually, the work had not yet been done.) When he arrived at defendant's office, both defendant and Gary, his minor son then in his employ, were there, but before plaintiff's business could be acted on, another customer inquired after a gas tank and muffler from a 1959 Ford. Defendant told Gary to fetch those parts from the salvage yard. Quick to do as bidden, Gary went from the office onto the adjoining yard, accompanied by Thomas who had not been expressly invited to so do. (Thomas and Gary, obviously acquainted, were classmates.) Thomas had heard defendant's direction to Gary and was aware that Gary's intended purpose in going onto the salvage yard had only to do with parts from a 1959 Ford and nothing to do with his dune buggy. Nevertheless, since Gary had not explicitly told him he should not, and otherwise piqued by curiosity, Thomas followed him, the two of them 'just talking' as he did. The nature and sequence of these events are not questioned. The balance of the testimony given both by Thomas and Gary bearing on the occurrence, although equally compatible, is best treated separately.

The minor plaintiff testified that he previously had been to defendant's premises on at lest two or three occasions to purchase automobile parts and at those times had seen customers 'at the salvage yard * * * back in the yard sometimes'. On the day of the casualty, the 1959 Ford from which parts were to be retrieved was located 25 or 30 feet from the office. After having accompanied Gary from the office onto the yard, he saw Gary get into a wrecker (which he described as 'an old truck with some booms on it out towards the back and a cable and everything'), back it up to the car, 'connect the cable' and 'hook up the wrecker' to the Ford and raise it about four feet above the ground. As suspended, the Ford was poised over four wheels, two of which had been positioned underneath each side, 'up toward the middle of the car'. Thomas understood this was meant as a safety measure. Gary then placed himself beneath the Ford in preparation for his task. Thomas 'crouched down' or 'stooped' so that his head intruded beneath the back end of the car so that he might 'see what (Gary) was doing and to talk with him'. When asked upon cross-examination whether he knew 'it was dangerous to crouch down or crawl under a car that is raised like that', he said only: 'I never thought too much of it'. As Gary was making ready to use his tools, but without having actually done so, and without apparent motivation, the car fell on Thomas' neck and shoulder. Thomas could not say what caused the car to fall.

Gary testified that he had worked in his father's salvage business for more than two years preceding the occurrence. During that time, at his father's direction, he had 'hooked up cars on this wrecker * * * and lifted them up several times before'. He acknowledged that customers were not permitted to 'walk about the yard' unless accompanied by an employee. As to the salvage procedure involving the 1959 Ford, he had 'just wrapped the cable around the frame and hooked the hook around the cable,' as he had done times before. He then lifted the car, and as a safety precaution placed two or three wheels under it 'just in front of the rear end'. The car was left 'raised in the air'. He crawled under the car and was so placed that he was looking up at 'the under side of the car'. Although he could not see Thomas from there, he had been talking to him and could tell he was at the rear of the car. Gary commenced loosening the bolts and clamps around the muffler and as he did, the car fell. Not until then did he realize that Thomas had been underneath the car and was now pinned by it to the ground. Gary came around, found that the cable had 'come unhooked', refastened it, raised the car once again and extricated Thomas. Gary had no idea why the car fell.

Defendant Hayes' appeal raises the issue whether the trial court erred in failing to enter judgment for defendant in accordance with his motion for directed verdict which asserted only: '(U)pon the facts and law plaintiffs have shown no right to relief'. So, the decisive question is: Does the evidence raise a duty to plaintiffs, a breach of which is shown? If so, may plaintiffs recover for such breach under res ipsa loquitur, pleaded and submitted?

Under Missouri decisions, the status of a person going upon land in the possession of another, in most instances, continues to be decisive in the determination of the duty owed him by the possessor. Wolfson v. Chelist, Mo., 284 S.W.2d 447, 452; Gruetzemacher v. Billings, Mo., 348 S.W.2d 952, 956(2); Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1(1--3). The classifications of status found are usually trespasser, or licensee, or invitee, according to the supposed relationship between the possessor and entrant. Richey v. Kemper, Mo., 392 S.W.2d 266, 268(1--3). If the entry was without consent or other privilege given by the possessor, the entrant is a trespasser; if with express or implied consent, but for the entrant's own purposes, he is a licensee; and if the entry was for some real benefit to the possessor, then the entrant is an invitee--and a different duty of care is owed to each. McVicar v. W. R. Arthur & Co., Mo., 312 S.W.2d 805, 811--812(1); Gilliland v. Bondurant, 332 Mo. 881, 59 S.W.2d 679, 687(11--14); Porchey v. Kelling, 353 Mo. 1034, 185 S.W.2d 820, 823(5, 6). These classifications have been further refined.

These distinctions, cultivated in the common law, 'were inherited from a culture deeply rooted to the land, a culture which traced many of its standards to a heritage of feudalism'. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630, 79 S.Ct. 406, 410, 3 L.Ed.2d 550. The courts have encountered some difficulty in rationally adapting these static classifications to the dynamic and complex personal and economic relationships of an industrial, urban age. Our own courts have met this difficulty by perpetuating the terminology of classification 'long employed by the profession and by the courts' (Wolfson v. Chelist, 284 S.W.2d l.c. 452), while at the same time freely transcending such common-law categories (and thus, the concomitant standard of care) when the justice of the case required. Salanski v. Enright, Mo., 452 S.W.2d 143, 145(2); McVicar v. W. R Arthur & Co., 312 S.W.2d l.c. 812(2--5); Anderson v. Welty, Mo.App., 334 S.W.2d 132, 136(5). In doing so, these decisions have recognized that it is the likelihood of presence with its consequent possibility of harm, and not technical status alone, which underlies a possessor's duty of care to the entrant. Moss v. Nooter Corp., Mo.App., 344 S.W.2d 647, 652(6); Philibert v. Benjamin Ansehl Co., 342 Mo. 1239, 119 S.W.2d 797; Harper & James, The Law of Torts, Vol. 2, Sec. 27.8, p. 1471; 38 Am.Jur., Negligence, 1970 Supp., p. 77 (addition to p. 676, note 9). For even 'a trespasser is not denied the right to recover because a trespass is a wrongful act, but because, since his presence is not to be anticipated, the property owner owes him no duty to take precautions for his safety'. McVicar v. W. R. Arthur & Co., 312 S.W.2d l.c. 812; Everett v. St. Louis & S.F.R. Co., 214 Mo. 54, 112 S.W. 486; and Arbogast v. Terminal Railroad Assn. of St. Louis, Mo., 452 S.W.2d 81 (which applies Sec. 339, 2 Restatement of the Law, Torts, First (1934) dealing with a possessor's duty to youthful trespassers whose presence should be anticipated). And once presence becomes known, whether that of an invitee, licensee, or trespasser, the significance of status largely disappears, and a uniform duty--that of reasonable care--is owed to each as to activities conducted on the premises. Anderson v. Welty, 334 S.W.2d l.c. 136, 137(6); Robidoux v. Busch, Mo.App., 400 S.W.2d 631, 636(4, 5); McVicar v. W. R. Arthur & Co., 312 S.W.2d l.c. 812; Day v. Mayberry, Mo.App., 421 S.W.2d 34, 40(10, 12).

Defendant Hayes...