Duff v. Eichler

• Decision Date: 07 May 1935
• Docket Number: No. 32906.,32906.
• Citation: 82 S.W.2d 881
• Parties: THOMAS A. DUFF, Appellant, v. WALTER J. EICHLER.
• Court: Missouri Supreme Court

82 S.W.2d 881

THOMAS A. DUFF, Appellant, v. WALTER J. EICHLER.

No. 32906.

Supreme Court of Missouri.

Division Two, May 7, 1935.

Appeal from Circuit Court of City of St. Louis. — Hon. O'Neill Ryan, Judge.

REVERSED AND REMANDED.

Lee, Fricke & Lee for appellant.

(1) The petition is good against demurrer. It is alleged that respondent negligently failed to provide and to keep a light burning in the vestibule, which created the dangerous and unsafe condition and caused the injuries, in violation of the city ordinance. 39 A.L.R. 302, 25 A.L.R. 1312; Roman v. King, 289 Mo. 641; State v. Haid, 330 Mo. 959, 51 S.W. (2d) 1015; Wilson v. Jones, 182 S.W. 756; 36 C.J. 213, note 58, p. 250, sec. 971; English v. Sahlender, 47 S.W. (2d) 150. (2) Demurrer admits all facts well pleaded in the petition, which must be liberally construed. Thompson v. Farmers' Exchange Bank, 333 Mo. 437. (3) Appellant was entitled to a submission of his case to the jury on the issue whether respondent was negligent in failing to provide and keep a light burning in the vestibule constantly throughout the nighttime. McCloskey v. Salveter & Stewart Inv. Co., 317 Mo. 1156, 298 S.W. 235; 36 C.J. 214, secs. 891, 892. (4) The test is whether the guest is upon the premises rightfully or wrongfully. The negligence charged in the petition and admitted by the demurrer is the failure to provide and to keep a light constantly burning in the vestibule. That would be actionable if it was the tenant Glomski who was injured. Wilson v. Frankel, 61 S.W. (2d) 363; Herdt v. Koenig, 137 Mo. App. 589; Eyre v. Jordon, 111 Mo. 424; 36 C.J. 224, sec. 913.

Otto O. Fickeissen for respondent.

(1) The petition is demurrable for the following reasons: (a) There is no allegation that respondent owed appellant any legal duty except the bald statement that defendant was the owner of the premises in question "and in charge and control thereof," which is a mere legal conclusion and should be disregarded when passing upon a demurrer to the petition. Mack v. Eissell, 59 S.W. (2d) 1051; Vogt v. Wurmb, 318 Mo. 476; Main v. Lehman, 294 Mo. 591; Glaser v. Rothschild, 221 Mo. 184. (b) Plaintiff having entered the building in the nighttime and when it was dark and by his petition and statement admitting that he was injured when leaving the building was guilty of contributory negligence and cannot recover. Glaser v. Rothschild, 221 Mo. 184; Bananomi v. Purcell, 287 Mo. 446; Vogt v. Wurmb, 318 Mo. 475; Border v. Sedalia, 161 Mo. App. 638. (2) Demurrer admits all facts well pleaded in the petition, but in passing upon a demurrer to the petition, the petition must be stripped of all conclusions and matter improperly pleaded and if what remains fails to state a cause of action, such petition is demurrable. Thompson v. Farmers Exchange Bank, 62 S.W. (2d) 803, 333 Mo. 437. We invite the court's attention to the opinion commencing with (11-14) on pages 810 and 811 of the Thompson case. Mack v. Eissell, 59 S.W. (2d) 1052. (3) The judgment of the circuit court should be affirmed for failure of appellant to have allowed and file in the trial court bill of exceptions within the time required by law. Smith v. Russell, 171 Mo. App. 324; Hardin v. Oil Co., 187 Mo. App. 730; Langstaff v. Webster Groves, 246 Mo. 225. (4) The judgment of the circuit court should be affirmed for failure of appellant to file a complete abstract. Whitehead v. Ry., 176 Mo. 479; Vandeventer v. Goss, 190 Mo. 244; Mitchell v. Mitchell, 191 Mo. 475; Harding v. Bedoll, 202 Mo. 625; Herman Savings Bank v. Kroop, 266 Mo. 226; Crohn v. Modern Woodmen of Am., 145 Mo. App. 163; Gooden v. Modern Woodmen of Am., 194 Mo. App. 677; Hummell v. Field, 216 Mo. App. 139; Sandretto v. Railroad Co., 218 Mo. App. 590; Brand v. Cannon, 118 Mo. 598.

WESTHUES, C.

Appellant filed his second amended petition in the Circuit Court of the City of St. Louis, Missouri, seeking to recover damages in the sum of $15,000 for personal injuries, alleged to have been sustained as the result of the negligence of respondent. The trial court sustained respondent's demurrer to the petition. Appellant declined to plead further and judgment was entered against him, whereupon he appealed.

Since the sufficiency of the petition is the sole question for our determination we will quote it insofar as material to the issue. It reads:

"Plaintiff states all the following, to-wit:

"1. That he is a resident of the City of St. Louis, Missouri.

"2. That, at all the times hereinafter mentioned, defendant was the owner of a two-story, four-family apartment building, known and numbered as 4983 Lindenwood Avenue, in the City of St. Louis, Missouri, and in charge and control thereof.

"3. That, at all the times hereinafter mentioned, said apartment building was occupied by four tenants, each independent of the others, and so occupying said building under separate rental contracts.

"4. That, at the said time, plaintiff was engaged in soliciting donations for the Emergency Charity Relief Fund of the City of St. Louis, a charitable organization, and it was necessary for him to visit dwelling houses, stores and apartment houses in the said City of St. Louis for the purpose of soliciting subscriptions for the said fund from the person or persons occupying or being in same, and that upon, to-wit: the 7th day of November, 1931, about the hour of 7:25 P.M., of said day, the plaintiff visited said apartment building known and numbered as 4983 Lindenwood Avenue, in the City of St. Louis, aforesaid, for the purpose of visiting the apartment rented and occupied by one W.E. Glomski, at the invitation, request and solicitation of the said W.E. Glomski, in pursuance of the line of his occupation in soliciting the said Glomski and members of his family for financial aid on behalf of the said charity.

"5. That the only means of ingress and egress to and from said apartment of said W.E. Glomski in said apartment building to said Lindenwood Avenue was by means of an unlighted vestibule, about four feet long and five feet wide, in which was a flight of four or five stone or marble steps for the use of all the tenants, and which was used by all the tenants, which said vestibule and steps are and were open to the public during all hours of the day and night, and all persons invited to enter who rented rooms or occupied rooms or space in said building and had a right in said building, or persons having social or business dealings with said tenants or occupants of said building, and was in the exclusive possession and control of defendant, his agents, servants and employees at the times hereinafter mentioned.

"6. That, on or about the 7th day of November, 1931, about the hour of 7:30 P.M., when it was dark and in the nighttime, plaintiff, when returning from the said apartment of said Glomski, attempted to descend said stone or marble steps, but plaintiff states that defendant, his agents, servants and employees, as the owner of said building, in exclusive possession and control of said vestibule and steps, had carelessly and negligently permitted the same to become and remain in an unfit, unsafe, not reasonably safe, and dangerous condition, by reason of being dark and unlighted, thus making travel along said vestibule and upon said steps, when it is dark and in the nighttime, unsafe, not reasonably safe, and dangerous, as aforesaid, the consequence of which was that, when plaintiff stepped from the landing at the first floor apartment of said Glomski in said building, in his said attempt to gain access to said Lindenwood Avenue, in a careful manner, he missed his footing and fell, being precipitated violently, in a twisted position, against and upon the southern wall of said building and the floor of said vestibule."

Here follows a statement in detail of the injuries sustained by appellant, which are immaterial to the issue presented. The petition continues as follows:

"... And all of his injuries are permanent, all as a direct and proximate result of the carelessness and negligence of defendant, his agents, servants and employees, in permitting said vestibule and steps in said apartment building to become and remain unfit, unsafe and not reasonably safe, and dangerous for travel thereon and therein, as aforesaid, notwithstanding that it was the duty of said defendant, his agents, servants and employees to keep said vestibule and steps in a reasonably safe condition for travel thereon, and plaintiff states that notwithstanding defendant, his agents, servants and employees, had notice of said dangerous unfit and unsafe condition of said vestibule and steps, and that the same were not reasonably safe for travel thereon when it is dark and in the nighttime, in time, by the exercise of due care required by law under such circumstances, to have placed therein or thereabout electric lights or other illumination, and thus and thereby have prevented injury to plaintiff, and plaintiff states that defendant, his agents, servants and employees, by the exercise of such care, could have prevented the injuries herein complained of... .

"10. That, for another and further assignment of negligence, plaintiff says that, at all the times hereinbefore mentioned, there was in force in the City of St. Louis aforesaid a certain ordinance, to-wit: Ordinance No. 36614, Section 3590, of the Revised Code of St. Louis, in which it is provided as follows, to-wit:

"`It shall be the duty of the keeper or proprietor of every hotel, public boarding house, lodging house, tenement house or apartment house of two or more stories in height to provide and keep a light unobstructed by colored glass in the common halls and stairways on each and every floor of said places.'

"And the plaintiff states that, although said apartment building was two stories in height, and came within the purview and scope of the said ordinance, the defendant, as the owner of said apartment...