Glaser v. Rothschild

• Citation: 106 Mo. App. 418,80 S.W. 332
• Parties: GLASER v. ROTHSCHILD.
• Decision Date: 29 March 1904
• Court: Court of Appeal of Missouri (US)

80 S.W. 332

106 Mo. App. 418

GLASER v. ROTHSCHILD.

St. Louis Court of Appeals. Missouri.

March 29, 1904.

INJURY TO LICENSEE—NEGLIGENCE—CONTRIBUTORY NEGLIGENCE—CHANGING POSITION ON APPEAL.

1. Because the basement of a building into which plaintiff went to go to the toilet was poorly lighted, so that one might not see the elevator pit, into which he fell in going round the boxes which obstructed the way, he was not, as a matter of law, guilty of contributory negligence in not obtaining a light.

2. Plaintiff, having come to defendant's office at his invitation on business, while waiting for him to be at leisure, requested and obtained permission to go to the toilet, in the basement, and was given the key thereto, it being locked. The way was blocked with boxes, of which defendant did not know, and, in going round them, in the poorly lighted basement, plaintiff fell into an elevator pit. Held, that plaintiff was a licensee, so that defendant was not liable for negligence at common law.

3. Plaintiff, having tried the case on the theory that defendant was guilty of negligence as at common law, and not having pleaded or relied on a statute, may not on appeal shift his position, and claim that, though he was only a licensee, defendant was liable, under Rev. St. 1899. § 6435, for failing to guard the hole into which plaintiff fell.

Appeal from St. Louis Circuit Court; S. P. Spencer, Judge.

Action by Louis Glaser against Robert Rothschild. Judgment for defendant, and plaintiff appeals. Affirmed.

David Goldsmith and N. M. Sale, for appellant. Seddon & Blair and R. A. Holland, for respondent.

BLAND, P. J.

The copartnership of Rothschild & Bro. occupied the whole of the building situated on the southwest corner of Eleventh street and Washington avenue, and carried on a business therein as wholesale hat dealers. Albert Rothschild was a member of the firm. On the lower floor of the building were the offices of the firm, and in the basement were toilet rooms, kept, presumably, for the accommodation of the firm and its employés. The plaintiff had visited the premises on previous occasions, and had visited the toilet rooms about two years before January 4, 1901. On the floor of the basement was a large elevator pit, unguarded by railing or otherwise. On the morning of January 4, 1901, defendant telephoned plaintiff to come to the business place of the firm; that he wished to consult him about investing in some stocks. The plaintiff answered the request by presenting himself at the office of the firm a short time after he received the telephone message. When he arrived the defendant was engaged in looking over his morning mail, and asked the plaintiff to wait until he had finished. Plaintiff said. "I will go down to the closet," and the key was handed to him by the direction of the defendant. Plaintiff descended the stairway to the floor of the basement, where he found the way to the toilet obstructed by piles of wooden boxes. He undertook to go around these boxes to make his way to the toilet, and in so doing fell into the elevator pit, and was injured. The suit is to recover damages for the injuries. The defenser was contributory negligence on the part of plaintiff, and an allegation that, as plaintiff was a licensee on the premises, for that reason defendant owed him no duty. The verdict was for the plaintiff, which the court, on motion of defendant, set aside, and ordered a new trial. From this order, plaintiff appealed.

The trial judge filed a memorandum (incorporated in the bill of exceptions) stating the grounds on which he sustained the motion for a new trial. That memorandum is as follows: "A careful examination of the evidence in this case convinces me that whatever may have been the negligence of the defendant in maintaining an open shaft, and about which negligence there is no question, nevertheless the act of the plaintiff in continuing his journey when he was met by a darkness which rendered everything invisible is an act of such contributory negligence on his part as to prevent any recovery in this case. As a matter of law, it may well be said that a man of reasonable prudence, on the errand which engrossed the attention of the plaintiff, would not have groped around in an unknown cellar without any light, and in the face of obstructions. At the least, he should have called for, or taken with him, some light to guide him on his way. His action in continuing along a passageway which was absolutely dark must be considered as an act of negligence upon his part, which, under admitted principles of law, destroys his right to recover in this action. For this reason, the motion for a new trial should be sustained on the thirteenth ground thereof." The plaintiff, in answer to a question put to him by the court, said that it was absolutely dark in the basement, that he had to grope around in the dark, and that he could not see anywhere. In explanation of what he meant by "absolute darkness," he said: "I don't say it was pitch dark, or that I could not see a man when he came up to me. I said there was a little light in through the stairway. Q. Poor light, you mean? A. Yes, sir; practically no light. Q. Well, what do you call `light'? You don't want to convey to the jury the idea that cellar was pitch dark, do you? A. No, not exactly; but just simply that you could fall in a hole without seeing it. Q. But if a man was six or seven feet in front of you, you could see him? A. Well, hardly, unless the boxes were cleared away." The evidence offered by the defendant was that there was abundant light in the basement. King, the janitor of defendant, testified there was sufficient light to enable him to see to drive a four-penny nail and to read a newspaper.

1. We do not think the plaintiff's evidence, considered as a whole, conveys the idea that total darkness prevailed in the basement; that there was no light whatever, but that it was so dark one feeling his way around boxes might not see the elevator pit and fall into it; that there was partial, not absolute, darkness. Plaintiff testified that light flowed into the basement from the stairway, and, according to the evidence of King, the janitor, there was a large window in the back end of the building, which afforded an abundance of light in the basement. We conclude that the evidence, considered as a whole, did not warrant the finding of the learned trial judge that the basement was absolutely dark, or that plaintiff can, as a matter of law, be said to have been guilty of such contributory negligence as to preclude his right of recovery.

2. It is contended by the defendant that the invitation to plaintiff was to the office of the firm alone; that he went into the basement at his own request and for his own accommodation, and, though by permission of defendant, he was, under the circumstances, in the basement as a mere licensee, and therefore the defendant owed him no duty to keep the premises in a reasonably safe condition; and that for this reason he should have been nonsuited. There is no evidence showing or tending to show that the toilet was maintained for the use of any and all persons who might come upon the premises to transact business with the defendant, or that it was made accessible to such persons. On the contrary, the fact that it was kept locked, and the key retained in defendant's office, shows that it was set apart for the use of the occupants of the premises, and was not open for the use of visitors to the defendant's place of business, and could not be used by them except by the permission of defendant on special request. In such circumstances, it cannot be said that the toilet was a part of the premises, kept in part for the use of any one who came upon the premises to transact business with defendant. It was not like a store or salesroom used in a business to which customers are invited to go to transact business with the proprietor. The place on defendant's premises, to which plaintiff was called by telephone message, was to the business office. The business he was asked to transact was such as would ordinarily be transacted in an office. Therefore his invitation was to the office, and not elsewhere. The use of the toilet was in no wise connected with this business, and he had no invitation to go there. Permission to go was given him at his own request, and, the place being maintained for private purposes only, it seems to us the plaintiff was a mere licensee, and that defendant owed him no duty to keep the premises in a safe condition.

The law in respect to a licensee injured on the premises of another is well stated by the Supreme Court of Massachusetts in the case of Sweeny v. Railroad, 10 Allen, loc. cit. 372, 87 Am. Dec. 644, as follows: "In order to maintain an action for an injury to person or property by reason of negligence or want of due care, there must be shown to exist some obligation or duty towards the plaintiff, which the defendant has left undischarged or unfulfilled. This is the basis on which the cause of action rests. There can be no fault or negligence or breach of duty where there is no act or service...