Friend v. Gem Intern., Inc.

• Decision Date: 28 December 1971
• Docket Number: No. 34070,34070
• Citation: Friend v. Gem Intern., Inc., 476 S.W.2d 134 (Mo. App. 1971)
• Parties: Norma FRIEND, Plaintiff-Respondent, v. GEM INTERNATIONAL, INC., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 134

476 S.W.2d 134

Norma FRIEND, Plaintiff-Respondent, v.GEM INTERNATIONAL, INC., Defendant-Appellant.

No. 34070.

St. Louis Court of Appeals, Missouri.

Dec. 28, 1971.

Motion for Rehearing or to Modify Opinion or to Transfer to

Supreme Court

Denied Jan. 18, 1972.

Application to Transfer Denied March 13, 1972.

Leritz & Leritz, J. L. Leritz, J. D. Leritz, St. Louis, for defendant-appellant.

Sommers, Montrey & Holloran, James P. Holloran, St. Louis, for plaintiff-respondent.

WEIER, Commissioner.

On June 11, 1968, the defendant, Gem International, Inc., conducted a department store business at 10900 Page Avenue, Saint Louis County.The furniture department was operated by Biederman Furniture Company under the name of an affiliate, Northland Discount Company, Inc., on the first floor of the Gem store.Plaintiff, Mrs. Norma Friend, was employed as a cashier and clerk by Biederman.About 6:15 p.m. upon this date, Mrs. Friend left the area where she was employed and started to go to a cafeteria on the second floor.To walk there, she passed through a doorway which led to a stair.Above the doorway an air-conditioning system was maintained by Gem.Condensation in this system caused water to collect and drip onto the floor, where it formed a puddle across the doorway, from one-eighth to one-fourth inch thick.It was admitted that Gem was responsible for the maintenance of the floor and steps.After getting the leather soles of her sandals wet walking through the water, Mrs. Friend ascended two or three steps.The steps were also wet.Her right foot slipped on the concrete surface of one of the steps and she fell, injuring her right foot.

A trial of the case resulted in a jury verdict for Mrs. Friend assessing damages for her injuries in the sum of $6,000.00.Gem's appeal from the judgment entered below contended that its motion for directed verdict should have been sustained at the close of all the evidence because Mrs. Friend was either a licensee or invitee of Gem and, since she knew of the water on the floor, there was no duty to warn her; hence, no liability.Mrs. Friend, just as vigorously, contended that her employer was a tenant of Gem and that she, as an employee of the tenant, occupied the same position as her employer with respect to the duty of a landlord to exercise reasonable care in maintaining the premises used by the tenant; that her knowledge of the dangerous condition did not prevent recovery but was merely a matter of contributory fault for the jury to consider and, since this was resolved in her favor, she was entitled to retain her judgment.

We do not attempt to restate the law which applies in each instance but rather refer those who wish to pursue the matter to these cases: as to an invitee, licensee or trespasser, Wells v. Goforth, Mo., 443 S.W.2d 155, 157(1--3); as to a tenant, Darlington v. Railway ExchangeBldg., Inc., 353 Mo. 569, 183 S.W.2d 101, 105(1, 2);Reckert v. Roco Petroleum Corporation, Mo., 411 S.W.2d 199, 204(1--4).We must rather attend the relationship existing between Gem and Biederman to determine the duty owed to Mrs. Friend by Gem.

As was previously stated, Gem contended plaintiff was a licenses or, at best, an invitee at the time of her fall.It based this on the further contention that Biederman, her employer, was its licensee and not its tenant.As to this, the evidence disclosed that Biederman occupied an area in the Gem department store under a contract which provided payment by Biederman to Gem of a percentage of gross sales which could vary, depending on the total amount of the sales.Warehouse space was rented by Gem to Biederman on a square foot basis.In the summer of 1968, Biederman occupied nine to ten thousand square feet of floor space on the first floor, but this space was not designated in the contract.Gem changed this area from time to time, both as to area and location in the building.No other merchant occupied any of the area allotted to Biederman, but there were others who occupied areas adjacent to Biederman.No barrier or line of demarcation separated on area from another, so far as customers were concerned.But, Biederman had a particular space in the store which its employees knew to be theirs and on which they operated the business.All of the floors in the store were cleaned by Gem.Gem employees checked the cash register tapes each evening for the total daily receipts to compute the charge.The entire written contract itself was not introduced, but the factual relationship of the parties can be pieced together from part of the contract read into evidence and the testimony of witnesses appearing for both parties.

How do we label this contemporary merchandising concept?Within the standards defining license or leasehold, how do we determine the legal relationship of the parties?Gem and Biederman described their written contract as a 'license'; Biederman was designated 'licensee' and the percentage paid, a 'percentage license fee'.But it matters not what the parties call it, other than to show their express intent.Rather, the nature of the relationship depends upon how it fits within the standards set by the law.The denomination of an instrument as a 'license' or a 'lease' by the parties cannot alter of affect its true nature.It assumes its correct appellation by reason of the rights and obligations created by its terms under the law.St. Joseph & St. L. R. Co. v. St. Louis, I.M. & S. Ry. Co., 135 Mo. 173, 36 S.W. 602, 608;Whiteside v. Oasis Club, 162 Mo.App. 502, 142 S.W. 752, 753(2);Wandell v. Ross, 241 Mo.App. 1189, 245 S.W.2d 689, 692(3).

To understand the issues raised by the parties, we turn to time-honored definition.The status of landlord and tenant is defined, generally, to arise from contract, express or implied, under the terms of which a person designated as 'tenant' enters into possession of land of another, known as 'landlord', with the rights of the tenant subordinate to the landlord.'The essentials of that relationship are said to be (1) a reversion in the landlord, (2) the creation of an estate in the tenant, either at will or for a term less than that for which the landlord holds, (3) the transfer of exclusive possession and control of the premises to the tenant, and (4) a contract, either express or implied, between the parties.'Johnson v. Simpson Oil Company, Mo.App., 394 S.W.2d 91, 96(4).On the other hand, the condition of licensor and licensee has also been defined, generally, to arise when one who owns or possesses land known as the 'licensor' grants to another known as 'licensee' the privilege of going onto land for a certain purpose without passing an estate in the land.One of the essential characteristics here is the absence of the right to possession of the land.Wandell v. Ross, supra, 241 Mo.App. 1189, 245 S.W.2d 689, 692(4);Wood v. Gregory, Mo., 155 S.W.2d 168, 171(6).

It is the absence of right to possession and control of the premises by Biederman that Gem relies on to conclude the relationship to be one of license and not lease.Gem contends Biederman merely had a privilege of selling merchandise, under a percentage license fee.It points out that the space occupied by Biederman was determined by Gem and that it had been changed several times by Gem.Further, there was no barrier or enclosure to separate the various departments, including the one operated by Biederman.This state of facts, Gem contends, can only lead to the conclusion that Biederman was a licensee and not a tenant.

Mrs. Friend, on the other hand, maintains, even though there was a change in area, there was also a corresponding change in percentage charge.Biederman, furthermore, had a definite and specific area which it occupied, to the exclusion of other merchants.As to warehouse space, this was rented on a per-square-foot basis.Although Gem's employees entered the area reserved to Biederman, this was for the purpose of checking the gross sales to compute the charge for occupancy, or to sweep floors, or to make social calls.Thus, plaintiff contends, Biederman had possession of and control over a certain area sufficient to classify it as a tenant.

It is apparent that there are indices of a landlord-tenant relationship sufficient to conclude that this status existed at the time Mrs. Friend was injured.Possession of a definite space in the store was held by Biederman.Although it might be changed from time to time at the will of Gem, its boundaries were definite and could be determined by the parties.Mrs. Friend, in describing the location of the stair on which she fell, stated that appliances, such as televisions and refrigerators, were on one side.A furniture rack was positioned in front.A radio rack and an office were also on the side.The cash register was behind a counter.The furniture was displayed and the operation conducted the same as in other Biederman stores where she had worked.Only employees were allowed behind the counter, except Gem employees to check the sales.According to Mr. Kaupang, assistant manager for Biederman, the area used by Biederman occupied a full corner, plus almost a whole side, some 150 to 200 feet wide.That the area might be changed would not destroy the landlord-tenant relationship.Any contractual...