Cupp v. Montgomery
| Decision Date | 20 September 1966 |
| Docket Number | No. 32128,32128 |
| Citation | 408 S.W.2d 353 |
| Parties | Saul L. CUPP, Plaintiff (Respondent), v. Robert MONTGOMERY and Almeda Montgomery, Defendants (Appellants). |
| Court | Missouri Court of Appeals |
Willson, Cunningham, McClellan & Gunn, Jerome M. Mc.Laughlin, St. Louis, for defendants-appellants.
Edward F. Downey, John J. Delabar, St. Louis, for plaintiff-respondent.
Defendants have appealed from a judgment in favor of plaintiff in the sum of $5,000 for damages resulting from personal injuries sustained when plaintiff slipped and fell off of the back porch on premises owned and occupied by defendants. Defendants offered no evidence and the case was submitted to the jury on the evidence adduced by the plaintiff.
Plaintiff is the uncle of defendant, Almeda Montgomery, whose mother is the sister of plaintiff. Defendants are husband and wife and were the owners of and resided at 4813 Roseblossom Lane in Hazelwood, Missouri. Some time prior to March 31, 1962, defendant, Robert Montgomery, called his wife's mother and asked her to tell plaintiff to come to the home of defendants to help with the sowing of grass seed in the yard of defendants' property. This message was conveyed to plaintiff's wife who in turn told plaintiff. On March 31, 1962, at 12:00 noon, pursuant to the invitation, plaintiff and his wife arrived at the home of defendants. After the noon repast, plaintiff and defendant, Robert Montgomery, started to sow grass seed in the yard. The yard had been dug by a rotary tiller. When this was done is not shown in the record. After sowing the seed they sprinkled water on the ground and, thereafter, spread straw over the ground. As a result of their activities there was mud over most of the yard. Attached to the back of defendants' home and adjacent to a doorway entrance to the home of defendants was a small platform type porch consisting of a concrete slab, gray in color, which was four or five feet square. The top level of the porch was fourteen inches above the surrounding ground. On the left side of the porch, as you face the house, there were two steps leading up to the porch level.
About 3:00 P.M. plaintiff went into defendants' home through the doorway referred to above, and in doing so he did not use the steps leading up to the porch. Instead, he stepped directly from the yard to the top level of the porch. His purpose in going into the house was to get a drink of water. Thereafter, he returned to his activities in the yard.
About 5:00 P.M. defendant, Robert Montgomery, went into the house and in doing so '* * * tracked mud * * *' on the back porch. About an hour later, at approximately 6:00 P.M., plaintiff desiring another drink of water, started to step directly from the yard to the top level of the porch. Again, he did not use the steps. He placed his left foot on the porch, as he explained it, 'Right on the edge,' at which time his right foot was still on the ground. As he started to raise his right foot up to reach the level of the porch with both feet, he slipped completely back to the ground and was injured. He looked to see what caused his foot to slip and saw it was some mud on the edge of the porch, which he described as, '* * * near the color of the porch * * *.' When looking at the mud he could see the impression his foot left as it went through the mud. Plaintiff, when asked to describe the lighting conditions said, '* * * it wasn't dark and it wasn't light, I would say something near dusk, * * *.' He said that both of his feet were not on the concrete porch at the time he fell, only his left foot was on the porch. In his cross examination plaintiff testified that he had been to the home of defendants on a number of occasions prior to this occurrence and had stayed at their home overnight. Also, in his cross examination, plaintiff testified that when he approached the porch he was looking in the general direction of it, could see the porch, but could see no mud on it at that time. When he stepped up onto the porch with his left foot he did not see any mud, but after he fell and looked to see what caused his fall, he said the mud was clearly visible. When asked if that was the only mud he saw there, he answered, 'Yes, that is all--I know there was mud there--that is all I could see.' He said he did not have any mud on his shoes because he had cleaned them off on the straw before he started into the house and looked at the bottom of his shoes before he walked in. Inasmuch as defendants do not claim the verdict is excessive we omit all evidence pertaining to the nature and extent of plaintiff's injury.
Defendant, Almeda Montgomery, was in her home at the time of the fall and after administering first aid to the plaintiff went out and looked at the porch. In describing the lighting conditions she said it was dusk--twilight at the time and that the outside electric porch light was not turned on. She described the color of the concrete as gray and the mud as, '* * * a kind of a clay mud.' The mud she saw on the porch was, 'Kind of on the edge' of the porch and she immediately took a pan of water and a broom and scrubbed it off.
Defendant, Robert Montgomery, did not testify in the trial below. However, over defendants' objection a statement signed by Robert Montgomery contained in a Request for Admissions made pursuant to Civil Rule 59.01(a), V.A.M.R. was read into evidence. Defendants do not include in their points relied on in this appeal any contention that the statement was inadmissible.
The pertinent parts of the statement signed by Robert Montgomery and read to the jury are as follows:
Defendants in their first contention assert that their motion for a directed verdict at the close of plaintiff's case should have been sustained for the reason that the evidence established that at the time of plaintiff's fall he was a social guest or bare licensee and plaintiff failed to prove any actionable negligence against defendants. Opposing this is plaintiff's contention that he was an invitee, and he further contends that, even if he was a licensee he made a submissible case because of defendants' active negligence.
Under the facts of this case it is certain that plaintiff was not a trespasser. He was either an invitee or a licensee and if he was injured by the active negligence of defendants it would be immaterial whether he was an invitee or a licensee. In either case defendants would be liable for damages resulting from such negligence. If we were to accept defendants' characterization of plaintiff's status at the time of his injury, namely, that of a bare licensee, nevertheless, defendants would be liable if active negligence was committed by them. Where injuries to a licensee are caused by the affirmative or active conduct of another, as distinguished from an existing or passive condition of the premises, the person committing the acts is subject to liability for failure to exercise ordinary care towards such licensee if his presence on the land is known or should reasonably be known to the actor. White v. Burkeybile, Mo., 386 S.W.2d 418; Anderson v. Welty, Mo.App., 334 S.W.2d 132. As said in the case of Anderson v. Welty, supra, (l.c. 137)
* * *'
We will assume, without so ruling, that plaintiff was a licensee at the time of his injury.
At the threshold of our discussion it is necessary to determine what constitutes active negligence as opposed to passive negligence. First, we point out, it is undisputed that plaintiff's presence on the property was known to both defendants. Active or affirmative negligence has been defined as negligence occurring in connection with activities conducted on the premises; Wolfson v. Chelist, Mo.App., 278 S.W.2d 39, 47; Anderson v. Welty, supra; Simpson v. Richmond, 154 Cal.App.2d 27, 315 P.2d 435 437; Potter Title & Trust Co. v. Young, 367 Pa. 239, 80 A.2d 76; whereas, passive negligence is negligence that causes danger by reason of the physical condition of the premises. Anderson v. Welty, supra, or, as we said in Wolfson v. Chelist (supra, 278 S.W.2d l.c. 47) '* * * negligence which permits...
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