Glaser v. Rothschild

• Decision Date: 08 June 1909
• Citation: 120 S.W. 1,221 Mo. 180
• Parties: LOUIS GLASER, Appellant, v. ALBERT ROTHSCHILD
• Court: Missouri Supreme Court

120 S.W. 1

221 Mo. 180

LOUIS GLASER, Appellant, v. ALBERT ROTHSCHILD

Supreme Court of Missouri

June 8, 1909

Appeal from St. Louis City Circuit Court. -- Hon. Selden P. Spencer Judge.

Reversed and remanded.

David Goldsmith and Lee Sale for appellant.

(1) Instruction 4 given by the court at the instance of defendant was erroneous. (2) Instruction 5 given by the court at the instance of defendant was erroneous. Coffey v. City of Carthage, 186 Mo. 583. (3) Instruction 1 given by the court at the instance of defendant was erroneous. (4) The refusal of instruction 3 asked by plaintiff was erroneous. Plaintiff had the right to proceed upon the assumption set forth in this instruction. Hollis v. Merchants Assn., 205 Mo. 520; Nephler v. Woodward, 200 Mo. 188; Hartman v. Muchbach, 64 Mo.App. 565; Nichols v. Railroad, 83 Va. 99; Curtis v Kiley, 153 Mass. 123; Powers v. Harlow, 53 Mich. 507; Wilsey v. Jewett Bros. & Co., 98 N.W 114. And plaintiff was entitled to have the jury informed by instruction of this right. Roe v. City of Kansas, 100 Mo. 193; Sullivan v. Railroad, 117 Mo. 224; Perrette v. Kansas City, 162 Mo. 249; Holloway v. Kansas City, 184 Mo. 30; Cassaday v. Kansas City, 119 Mo.App. 118; Stout v. Columbia, 118 Mo.App. 443; Gordon v. City of Richmond, 83 Va. p. 440 (cited with approval in 205 Mo. 521); City of Indianapolis v. Gaston, 58 Ind. 228; Board of Commissioners v. Legg, 110 Ind. 482. (5) The refusal of instruction No. 2 asked by plaintiff was erroneous. R. S. 1899, sec. 6435. The decisions of this court relied upon by respondent as warranting the refusal of this instruction are not in point. Maguire v. Spencer, 91 N.Y. 305; Weller v. Railroad, 120 Mo. 652; Perrette v. Kansas City, 162 Mo. 249. (6) There is no competent evidence of contributory negligence. Nephler v. Woodward, 200 Mo. 1790; Warner v. Mier, etc., Co., 58 N.E. 554; Sheyer v. Lowell, 134 Cal. 359.

Seddon & Holland for respondent.

(1) The verdict and judgment are for the right party. Reardon v. Thompson, 149 Mass. 267; McGill v. Compton, 66 Ill. 327; O'Brien v. Western Steel Co., 100 Mo. 182; Stevens v. Nichols, 155 Mass. 472; Converse v. Walker, 30 Hun 596; Benson v. Machine Co., 77 Md. 535; Sterger v. Van Strickland, 132 N.Y. 499; Heinlein v. Railroad, 147 Mass. 136; Evansville v. Griffin, 100 Ind. 221; Severy v. Nickerson, 120 Mass. 306; Sweeny v. Railroad, 92 Mass. 372; Parker v. Publishing Co., 69 Me. 173; Faris v. Hoburg, 134 Ind. 269; Pierce v. Whitcomb, 48 Vt. 127; Glaser v. Rothschild, 106 Mo.App. 418; Metcalf v. Cunard, 147 Mass. 66. The court did not err in giving instruction 5. State v. Brooks, 99 Mo. 137; Feary v. Railroad, 162 Mo. 106; Sweeny v. Railroad, 150 Mo. 385; Pratt v. Conway, 148 Mo. 292; Walker v. City, 99 Mo. 647; Carroll v. Railroad, 88 Mo. 239. (3) The court did not err in giving instruction 1 at the instance of defendant. (4) The court did not err in refusing instruction 3. Culbertson v. Railroad, 140 Mo. 35; Lynch v. Railroad, 112 Mo. 422; Weller v. Railroad, 120 Mo. 635. (5) The court did not err in refusing instruction 2. Authorities under point 4.

LAMM, J. Gantt, Burgess and Graves, JJ., concur in what is here said. Woodson, J., expresses his view in a separate opinion in which Valliant, C. J., and Fox, J., concur fully, and Graves, Gantt and Burgess, JJ., also concur in paragraph four thereof. As to paragraph four, Lamm, J., stands dubitans.

OPINION

In Banc

LAMM J.

This case was argued and submitted in Division One. That division was equally divided on the main contention in the case, to-wit, whether Glaser was an invitee at the time he was injured or whether he was a mere licensee. The cause having been transferred to Banc, the majority of the Brethren were of opinion he was an invitee. The opinion of our Brother Woodson in division, to whom the case was there assigned and by whom it was written, did not meet the approval of the majority on that point. His divisional opinion will be appended hereto as a dissent on that point, but we all agree that his statement of the case is correct. We all agree that paragraphs one, two and three of his opinion correctly rule that there was error in the instructions as pointed out. A majority of the court agree with paragraph four in his opinion. On that paragraph I stand dubitans. On paragraph five which holds that plaintiff had no case and that the judgment should be affirmed in spite of the errors in the instructions, Burgess, Gantt and Graves, JJ., agree with me in ruling as follows:

(a) In such cases as this the root of the thing, the deciding question, is: Do the facts raise a duty, a breach of which is shown? [Pierce v. Whitcomb, 48 Vt. 127; Sweeny v. Old Colony R. R., 10 Allen 368.] There are such sure and clear words in the law in that behalf that all doubts are resolved and one who runs may read. The general rule is that the owner or occupier of premises lies under no duty to protect those from injury who go upon the premises as volunteers or merely with his express or tacit permission from motives of curiosity or private convenience in no way connected with business or other relations with the owner or occupier. [Hargreaves v. Deacon, 25 Mich. 1; Benson v. Baltimore Traction Co., 77 Md. 535, 26 A. 973; Railroad v. Slaughter, 167 Ind. 330, 79 N.E. 186, and cases cited; see, also, arguendo, O'Brien v. Steel Co., 100 Mo. 182, 13 S.W. 402, and Glaser v. Rothschild, 106 Mo.App. 418, 80 S.W. 332; Kelly v. Benas, 217 Mo. 1, 116 S.W. 557.]

A bare licensee (barring wantonness or some form of intentional wrong or active negligence by the owner or occupier) takes the premises as he finds them. His fix may be likened unto that of one who, buying lands, buys stones; or, buying beef, buys bones; or borrowing a coat, takes it with holes in and buttons off -- that is, in the use of his bare license he takes on himself the risk of perils from defects in the premises. Mere permission without more involves "leave and license," but bestows no right to care. If A give B leave to hunt mushrooms for his table in A's field, and B fall into a ditch, or uncovered pit, and is harmed, no duty was raised, no breach is made and, hence, no action lies. As put by way of illustration in the books, suppose A owns a sea-view, a cliff, and gives B permission to walk on the edge of the cliff for pleasure or air, it would be absurd to contend that such leave cast on A the burden of fencing the cliff to keep B from falling off.

(b) But the situation with reference to liability radically changes when the owner invites the use of his premises for purposes connected with his own benefit, pleasure and convenience. That change calls into play other rules of law in order to do full and refined justice. The rule applicable to that change is that a licensee who goes upon the premises of another by that other's invitation and for that other's purposes is no longer a bare licensee. He becomes an invitee and the duty to take ordinary care to prevent his injury is at once raised and for the breach of that duty an action lies. [See authorities, supra; Pauckner v. Wakem, 231 Ill. 276, 83 N.E. 202; and a line of cases cited by Gillet, J., in the Slaughter case, supra; also, Nephler v. Woodward, 200 Mo. 179, 98 S.W. 488, arguendo.]

The word "invitation" used in the rule covers and includes in it enticement, allurement and inducement, if the case in judgment holds such features. Also, the invitation may be implied by a dedication, or it may arise from known customary use. [Drennan v. Grady 167 Mass. 415, 45 N.E. 741; and cases, supra.] So, too, it is held in all the cases that the invitation may be implied by any state of facts upon which it naturally and reasonably arises.

(c) Now, in applying those settled principles of general law to the facts of this case, how does it stand?

(1) We need waste no time on the question of known customary use of Rothschild's locked water closet by visitors or customers at his store. This is so because Glaser was not invited to the closet by any such use. He did not know of such use and hence did not act on nor was he induced by it to go to the dark basement of the store and take the path to the closet bounded by boxes on one side and the unguarded elevator pit on the other. If he had gone there on the strength of a right bottomed on an invitation arising by known customary use, then another and different case would be here. In such hypothetical case we would have to deal with the locked door and the key thereto kept in the office. Respondent's learned counsel argues that the lock and key destroy the idea of a common use in those who visited the store on its owner's business -- the class to which Glaser belonged. A lock to a door and a key retained by the owner might, or might not, show no such use. It might be a question of fact, not of law -- e. g., a lock might be put on the door of a convenience like a water closet and a key to the lock be kept by some one of a class of persons, for the very purpose of confining the use of that convenience to such class, as distinguished from the public at large or other classes, to-wit, the ordinary help of the establishment. But, as pointed out, under the facts of this record the significance of the locked door and of the key kept in the office need not be judicially determined.

(2) In getting at the essence of and giving reasonable scope to the rules of law applicable to the liability of the owner for injuries received by an invitee, it has been well held that his license does not give him the right to roam at will without further invitation, to out-of-the-way places on the premises, wholly disconnected from and in no way pertaining to the business in hand; for instance, to the roof from a curiosity to see a passing street...