Gruhalla v. George Moeller Const. Co.

• Decision Date: 20 April 1965
• Docket Number: Nos. 31537,31538,s. 31537
• Citation: 391 S.W.2d 585
• Parties: Lorraine GRUHALLA, (Plaintiff) Respondent, v. GEORGE MOELLER CONSTRUCTION COMPANY, a Corporation, and Reverend Vincent Naes, (Defendants) Appellants.
• Court: Missouri Court of Appeals

Page 585

391 S.W.2d 585

Lorraine GRUHALLA, (Plaintiff) Respondent, v. GEORGE MOELLER CONSTRUCTION COMPANY, a Corporation, and Reverend Vincent Naes, (Defendants) Appellants.

Nos. 31537, 31538.

St. Louis Court of Appeals, Missouri.

April 20, 1965.

Motion for Rehearing or for Transfer to Supreme Court Denied

May 14, 1965.

Application to Transfer Denied July 12, 1965.

W. Munro Roberts, Jr., Theodore D. Ponfil, Heneghan, Roberts & Cole, St. Louis, for appellant George Moeller Const. Co.

John S. Marsalek, Robert E. Keaney, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for appellant Rev. Vincent Naes.

James F. Koester, St. Louis, David G. Dempsey, Clayton, for respondent Lorraine Gruhalla.

RUDDY, Presiding Judge.

This is an action for damages for personal injuries sustained by plaintiff when she tripped in a depressed or recessed area and fell while leaving St. Cecelia's Catholic School. Plaintiff recovered a judgment for $8850 against both defendants, namely, Reverend Vincent Naes and George Moeller Construction Company, a corporation. Defendants' motions for judgment were overruled but their motions for a new trial were sustained and the court set the judgment aside. Thereafter, the court entered an order setting aside the prior order granting a new trial and entered an order overruling defendants' motions for directed verdict or in the alternative for a new trial.

In her amended petition plaintiff alleged that the defendant George Moeller Construction Company was engaged in the construction of St. Cecelia's Catholic School in the City of St. Louis; that the construction of said building had been commenced and that said defendant was the agent, servant and employee of defendant, Reverend Vincent Naes; that on November 12, 1959, when said building had not as yet been completed plaintiff was on the premises of said school as a business invitee for the purpose of attending a meeting and while on said premises was using a vestibule or exit way from said school; that the interior of said vestibule was dark and dingy and contained therein a hole or opening in the floor of the said vestibule or exit way and that plaintiff was thereby caused to fall upon the said hole or opening in the said floor and was caused to sustain great physical injury. The negligence alleged in said amended petition was that said defendants maintained said vestibule or exit way in a condition that was dangerous and not reasonably safe; that they failed and omitted to eliminate or correct the dangerous condition.

Plaintiff further alleged that defendants were negligent in allowing the public to use said place which was dark, dingy and not reasonably safe; in failing to provide illumination at or near said exit way or vestibule and in failing to warn her of said condition.

Plaintiff further alleged that defendants in the exercise of ordinary care could have provided a barrier, guard rail or other type of protection in the area of the hole or opening in the said floor and thus and thereby have avoided said fall and injury to the plaintiff.

We shall refer to Reverend Vincent Naes as Father Naes and to George Moeller Construction Company as Moeller. The only evidence offered on the part of the defendants was the reading of parts of the building contract which will be referred to later. All other evidence was offered by plaintiff during her case.

The entire property belonging to St. Cecelia's Catholic Church occupies an entire city block bounded on the north by Eichelberger Avenue, on the south by Eiler Avenue, on the west by Louisiana Avenue and on the east by Alaska Avenue.

The Archbishop of the City of St. Louis holds the legal title to the property. The church building is located at the southeast corner of the block and the rectory at the southwest corner. Prior to June 1958 the old school was located on the corner of Louisiana and Eichelberger. Father Naes was Pastor of the parish under appointment by the Archbishop and had supervision and control of the church, school and parish.

In the summer of 1958, the construction of a new school and auditorium, sometimes referred to in the testimony as gymnasium, was commenced on the northeast corner of the city block, namely, Eichelberger and Alaska. A contract for the erection of the building was made with Moeller and was signed by the Archbishop and Father Naes. While the new school was being constructed the children attended the old school. During the summer of 1959, the old school was torn down. In September of 1959, the children started to attend the new school.

The new building consisted of a ground floor which was even with the sidewalk and two stories above the ground floor. There were a number of entrances to the school building, but the one involved in plaintiff's accident faced Eichelberger Avenue to the north. It consisted of two glass doors and on each side of the glass doors were narrow fixed glass panels. Father Naes testified that the area of glass in the doors and panels was 72 square feet, and in the vestibule inside of the entrance doors were three lights which could be turned on by use of a three way switch. The doors entered into a vestibule, and from the doors to two steps which ascended to a hallway was a distance of six feet from north to south. This hallway led to a room referred to in the testimony as the Youth Room. In the vestibule there was a recessed area in the floor, approximately four by eight feet in size, which was designed to hold a rubber mat. Plaintiff estimated the depth of the recessed area at one to one and one-half inches. Father Naes testified that the depth by actual measurement was one-half inch. He also testified that the recessed area was constructed in conformance with the building contract. Father Naes further testified that there were a lot of items considered furnishings which were excluded from the building contract and were to be furnished by the parish. Included in the items considered furnishings were the rubber mats which were to be furnished by the parish and included in them was the rubber mat for the recessed area in question. Father Naes testified that approximately one year before the mat was needed he ordered it from a supply house. He further testified that when the contractor had finished with that area of the building, a mat was delivered but was found to be of an incorrect size. This mat was taken back by the company that furnished it and the salesman for said company measured the space again and between that time and the time of plaintiff's injury Father Naes had asked the mat supply company for delivery of the mat many times without success.

At the time plaintiff fell there was no rubber mat in the recessed area at the bottom of the stairs. There were no ropes or barricades preventing the use of the exit way and there were no signs warning of the depression. When plaintiff came out of the Youth Room where the meeting was held the day of her fall, there were no lights in the hall. However, she said she had no difficulty seeing the steps as she approached the exit way. There was no artificial lighting in the vestibule at the exit door but plaintiff testified that there was sufficient light coming in through the glass door for her to have good vision.

Father Naes testified that there was no attempt to place anything in the recessed area in lieu of the mat, further testifying that the area is well lighted by means of the glass panel and the glass door. He said that some time between the opening date of school and the time of plaintiff's fall he told Mr. Fred Ruck, foreman for Moeller, he felt that the recessed area was dangerous and that he thought something should be placed in the area in question.

Plaintiff alleged in her petition that defendant Moeller was the agent, servant and employee of defendant, Father Naes, in the construction of said school building and that on the occasion of plaintiff's fall the construction of said building had not as yet been completed. Parts of the building contract for the construction of the school and gymnasium were read into evidence and the pertinent parts relative to the time the construction of the school and gymnasium was to be completed for occupany were as follows: 'The school and gymnasium shall be completed for occupancy by April 1, 1959, the balance of the work shall be completed by July 1, 1959.' Another provision under the general specifications in said contract provided that the owner will have the right to take possession of and use any completed or partially completed portions of the structure or work notwithstanding the time for completing the entire work may not have expired. At the time of his testimony Father Naes said he was not familiar with the latter provision of the contract. In this connection plaintiff testified: 'Q. But the school itself and the entrance way or exit way where you were leaving the building that day had been fully constructed and in use for a period of some two months, is that not correct? A. Possibly.'

Father Naes testified that some time prior to the opening of the school season he asked the contractor whether he could get in the building and thereafter he gave the 'go ahead' for the school to be used by the students. He did not relate the conversation he had with the contractor. Father Naes testified to the preparation of a check list, evidently prepared by him and the contractor, Moeller, for the completion of little items in the building. Some of these items on the check list were not completed and were still to be performed at the time of plaintiff's fall. He was asked, 'And you have no recollection whatsoever of any items being on the check list in this exit area, there was nothing to be done in there?' He answered, 'I cannot recall the check list.'

When the court asked Father Naes whether the workmen for the construction company were still performing tasks in the actual area itself within the school, 'that is the area...