Gruetzemacher v. Billings
| Decision Date | 10 July 1961 |
| Docket Number | No. 1,No. 48385,48385,1 |
| Citation | 348 S.W.2d 952 |
| Parties | Laura GRUETZEMACHER, Appellant, v. Mabel BILLINGS et al., Respondents |
| Court | Missouri Supreme Court |
Lyng, MacLeod, Abels & Lying, Russell N. MacLeod, St. Louis, for plaintiff-appellant.
Barnhart & Sommers, David G. Dempsey and Don B. Sommers, St. Louis, for defendants-respondents.
Action for damages for personal injuries sustained when plaintiff caught her left foot on a stake in defendants' flower bed on defendants' premises and fell and sustained serious injuries. Plaintiff's action was based on the theory that plaintiff was an invitee of defendants. Verdict and judgment were for plaintiff for $25,000, but the court set the verdict and judgment aside and entered judgment for defendants in accordance with defendants' after-trial motion for judgment in accordance with their motion for a directed verdict presented at the close of all the evidence. Plaintiff has appealed.
The evidence tended to show that plaintiff was a 74-year old, single lady, living with her sister at 4633a Shenandoah Avenue, St. Louis, Missouri, in a four-family flat on the north side of the street. To the west of this flat was another somewhat similar four-family flat, 4637 Shenandoah Avenue, owned by defendants, Mabel Billings, Chester D. Billings, her son and his wife, Mary A. Billings. The defendants occupied the two downstairs apartments and rented out the upstairs apartments. Between the two buildings was a grass plot extending from the street northwardly to an east and west fence that ran from the rear corner of one building to the rear corner of the other. At either end of this fence there was a gate which was attached to the respective buildings. These gates opened into the back yards, which were separated by a fence running north and south. The south end of this fence was attached to the mid-point of the east and west fence. In other words the back yards were enclosed and separated from one another. The front yard (to the south of the east-west fence) was neither separated nor enclosed. Each building had a concrete sidewalk about three or four feet wide leading from the street to the back yard and then to the back door. Plaintiff's walk was on the west side of the building in which she lived and defendants' walk was on the east side of their building. About six feet of lawn separated the two walks. The mentioned gates were located over the respective walks. The fences and gates were of open mesh, with wire up and down and across. ('It wasn't real close.) Both the plaintiff and Mrs. Mabel Billings maintained, or in the past had maintained, small flower beds between their buildings. Plaintiff's flower bed was south of and up against the east-west fence on her side of the property line and Mrs. Billings' was alongside of her own sidewalk and extended about six feet south of the east-west fence. 'It wasn't really a bed, she just planted seed there.' Plaintiff had noticed that the grass had grown up very tall in this area. The grass was 15 to 18 inches high.
On August 2, 1958 plaintiff was in her back yard hanging up clothes about noontime. In the back yard of defendants, three small children, two, three and four years of age, were playing. The oldest and youngest were the children of defendants Chester D. and Mary A. Billings, and the boy, who was slightly under three years of age (Keven McGill), was the son of Mrs. Mabel Billings' daughter Virginia, and the nephew of Chester and his wife. No one was watching the children, but according to plaintiff's evidence the defendants were at home. Plaintiff had cautioned the children once to stay away from the Billings' gate, saying: 'They don't want you out there.'
Plaintiff further testified as follows:
'I heard the child screaming, and I turned around to see what the matter was, and there was the little follow (Keven) on the top of the fence, he was sitting on top the fence and his little tennis shoe was caught in the fence and he was screaming. I said, 'Wait a minute, honey, I'll get you down.' I hurried over there as fast as I could, out the gate and over there and lifted him off. * * * I opened the gate and put him back, and I said, 'You stay there.' Then I turned around and started back to my own place, and I took two to three steps and then the grass was so tall, it had rained out-rageous that week and the grass was so tall you couldn't see anything. I took one step with my right foot, and then I started to take another, but the stake caught me squarely, and I couldn't put my hand out,----
Plaintiff further testified:
'Well, here's the gate I took the little fellow and put him back there and started up this way, a couple of feet, and started over this way with my right foot, and started to put the left foot there, but it caught.
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flower bed to your right, over in this direction from you (indicating)? A. Yes, sir.
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Plaintiff further testified that there was nothing to have prevented her from walking along the defendants' sidewalk to a point beyond the Billings' flower bed and then to have crossed on the grass or lawn area, except that it would have been out of her way. 'It would be an unnormal thing to do.' When plaintiff looked back after she fell, she could see the stake in the flower bed. The grass had been trampled by her falling and she could see the cause of her fall. She said to Mrs. Billings, who had come to her assistance, 'I fell over that stake.' The stake was about four inches wide and six or seven inches high. Mrs. Billings pulled up the stake and threw it away. The tall grass was just in the flower bed area, since the lawn area was mowed about like it was shown in the photograph. 'I guess it was something like that.'
Plaintiff offered other evidence tending to show that there was another stake at the east side of the Billings' flower bed. It was a square stake about one and a half to two inches wide. Mrs. Mabel Billings, called as a witness for plaintiff, testified that whatever stakes were in the flower bed she had placed there for fear that her son would cut the flowers off with the lawn mower. Some bricks separated plaintiff's flower bed from that of defendants. The east stake was close to the bricks. There was conflicting evidence as to whether there was more than one stake in the flower bed. Plaintiff also offered a part of defendant Chester D. Billings' deposition to the effect that he knew there had been a stake or two in his mother's flower bed.
Error is assigned on the action of the court in setting aside the verdict of the jury and entering judgment for defendants in accordance with defendants' motion for a directed verdict presented at the close of all the evidence. Appellant insists that the only issue on this appeal is whether plaintiff was an invitee or a licensee when she was on defendants' premises. She contends that the judgment entered for defendants was based solely on the ground that plaintiff was a mere licensee and not entitled to the status of an invitee. Appellant says the trial court erred (1) in ignoring the factual situation shown by her evidence which disclosed an implied invitation to plaintiff to enter upon defendants' premises; (2) in holding that plaintiff was a licensee rather than an invitee; (3) in holding that, because a rescue was involved, plaintiff could not have a greater status than that of the rescued; and (4) in holding, in effect, that the 'benefit' to the owner must be of a financial or commercial nature. Appellant directs particular attention to the trial court's 'memorandum opinion', which was filed and made a part of the record. Much of appellant's brief is devoted to an attack upon the views expressed therein, but we are not particularly concerned with the reasons assigned by the court for its order setting the verdict and judgment aside and entering judgment for defendants, because, if the judgment entered was for...
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...opportunity of the invitor to protect the invitee and the capacity and opportunity of the invitee to protect himself." Gruetzemacher v. Billings, Mo., 348 S.W.2d 952, 958; Hudson v. Kansas City Baseball Club, 349 Mo. 1215, 164 S.W.2d 318, 321, 142 A.L.R. 858; Hammontree v. Edison Bros. Stor......
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...one is his superior knowledge of the defective condition of his premises which results in injury to his business invitee. Gruetzemacher v. Billings, Mo., 348 S.W.2d 952; Howard v. Johnoff Restaurant Co., Mo., 312 S.W.2d 55; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278. As further pointed out in......
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...is his superior knowledge of the defective condition of his premises which results in injury to his business invitee. Gruetzemacher v. Billings, Mo., 348 S.W.2d 952; Howard v. Johnoff Restaurant Co., Mo., 312 S.W.2d 55; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278. If a proprietor knows, or in ......
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