Happy v. Walz

• Decision Date: 12 July 1948
• Docket Number: 40705
• Citation: 213 S.W.2d 410,358 Mo. 56
• Parties: A. W. Happy, Respondent, v. Milo H. Walz, Appellant
• Court: Missouri Supreme Court

213 S.W.2d 410

358 Mo. 56

A. W. Happy, Respondent, v. Milo H. Walz, Appellant

No. 40705

Supreme Court of Missouri

July 12, 1948

Rehearing Denied September 13, 1948.

Appeal from Cole Circuit Court; Hon. Sam C. Blair, Judge.

Affirmed.

Lauf & Bond for appellant.

(1) Those who used the private alley to enter the Walz stores were bare licensees who used this route to suit their own convenience. There was no evidence in the entire record that defendant had ever extended any invitation either expressly or impliedly to anyone, including plaintiff, to use the private alley to enter his stores through the rear doors. Stevenson v. Kansas City So. R. Co., 159 S.W.2d 260; Porchey v. Kelling, 185 S.W.2d 820, 353 Mo. 1034; Boneau v. Swift & Co., 66 S.W.2d 172. (2) The evidence clearly shows that plaintiff received his injuries on private portions of defendant's business premises that is, a freight elevator shaft, to which plaintiff nor any other customer had been invited and defendant owed no duty of care to plaintiff while using such portions of defendant's premises. Menteer v. Fruit Co., 144 S.W. 833, 240 Mo. 177; Watson v. St. Joseph Mining Co., 331 Mo. 475, 53 S.W.2d 897; Behre v. Hemp & Co., 191 S.W. 1038; Shaw v. Goldman, 116 Mo.App. 332, 92 S.W. 165. (3) Plaintiff, having wandered from accustomed paths beyond the scope of any possible invitation extended to him by defendant, cannot recover. Menteer v Fruit Co., 144 S.W. 833, 240 Mo. 177; Watson v. St. Joseph Mining Co., 331 Mo. 475, 53 S.W.2d 897; Behre v. Hemp & Co., 191 S.W. 1038; Shaw v. Goldman, 116 Mo.App. 332, 92 S.W. 165; Barry v. Cemetery Assn., 106 Mo.App. 358. (4) If it is to be said that the plaintiff was invited to use the private alley behind the stores plaintiff cannot recover because he utterly failed to prove the allegations of his petition that the elevator doors were in close proximity and similar to the rear entrance of the hardware store. Clapp v. Mear, 134 Pa. St. 203; Steinke v. Halverson, 178 N.W. 964. (5) Plaintiff did not make a submissible case and cannot recover because his own testimony shows he was contributorily negligent in that he unhesitatingly walked through a door into an elevator shaft in strange, dark and unfamiliar surroundings that in no way resembled the entrance he intended to use. Bonanomi v. Purcell, 287 Mo. 436, 230 S.W. 121; Wilkerson v. Webb-Carter Shoe Co., 233 N.W. 291; Wilson v. Goodrich, 252 N.W. 143. (6) Plaintiff cannot recover and he failed to make a submissible case because the proximate cause of his injuries was his own mistake in entering the wrong door, which mistake was not foreseeable since the evidence showed no reasonable excuse why such a mistake should have been made. Wecker v. Ice Cream Co., 326 Mo. 451, 31 S.W.2d 974; Marshall v. United Ry. Co., 209 S.W. 931; Mann v. Pullman, 344 Mo. 543, 127 S.W.2d 426. (7) While a trial court has the discretion to grant one new trial on the ground that the verdict is against the weight of the evidence he must exercise a judicial discretion, not an arbitrary discretion, and when plaintiff has failed to make a submissible case the court is in error in granting a new trial on any ground. Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297; Johnson v. Grayson, 230 Mo. 673, 130 S.W. 673; Herbert v. Hawley, 32 S.W.2d 1095.

Hendren & Andrae for respondent.

(1) Plaintiff made a submissible case because he was an invitee at the time and place of his injury. Kennedy v. Phillips, 319 Mo. 573, 5 S.W.2d 33; Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1; Porchey v. Kelling, 353 Mo. 1034, 185 S.W.2d 820; Evans v. Sears, Roebuck & Co., 104 S.W.2d 1035; 38 Am. Jur. 796; 20 A.L.R. 1138; Carraway v. Long, 7 Mo.App. 595; English v. Sahlender, 47 S.W.2d 150; Clopp v. Mear, 134 Pa. St. 203, 19 A. 504; Downing v. Bank, 192 Iowa 1250, 184 N.W. 722. (2) Plaintiff made a submissible case because defendant was negligent in the manner of his maintenance of his elevator shaft and this negligence was the direct and proximate cause of plaintiff's injuries. Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1; State ex rel. v. Haid, 51 S.W.2d 1015; Welch v. McAllister, 15 Mo.App. 492; English v. Sahlender, 47 S.W.2d 150; Fox v. Jobbing House, 32 S.W.2d 130. (3) Plaintiff was not contributorily negligent as a matter of law. Geninazza v. Storage Co., 252 S.W. 417; State ex rel. v. Haid, 51 S.W.2d 1015; Rhodius v. Johnson, 24 Ind.App. 401, 56 N.E. 942; Engel v. Smith, 82 Mich. 1, 46 N.E. 21; English v. Sahlender, 47 S.W.2d 150; Cox v. Bondurant, 220 Mo.App. 948, 7 S.W.2d 403. (4) The order of the trial court in granting plaintiff a new trial because the verdict was against the weight of the evidence was not an abuse of discretion and should be upheld. Cullison v. Wells, 317 Mo. 880, 297 S.W. 370; Sawyer v. Winterholder, 195 S.W.2d 659; Civil Code of Missouri, Mo. R.S.A. Sec. 847.115; Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297; Tabler v. Perry, 337 Mo. 154, 85 S.W.2d 471; Reid v. Ins. Co., 58 Mo. 421.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

Action for $ 15,000 damages for personal injury sustained by plaintiff in falling into an elevator shaft at the rear end of defendant's store. The jury returned a verdict for defendant, but the trial court upon motion granted a new trial upon the specified ground the verdict was against the weight of the evidence. Defendant has appealed.

Plaintiff alleged negligence of defendant, the occupant of a building and proprietor of a store, in the maintenance of the elevator shaft in the rear end of his store, (1) without having the shaft marked or identified as such; (2) without maintaining locks on the shaft doors; (3) without warning the public (and particularly plaintiff) of the condition; (4) in close proximity to a similar door, a regular entrance to the store, without any guard rails or other equipment to prevent the public from walking into the shaft; and (5) without having the shaft lighted -- by reason of which negligence, it was alleged, plaintiff, a business invitee, believing he was using an entrance provided for the public, walked into and fell to the bottom of the shaft and was injured.

Defendant by answer raised the general issues, and set forth affirmatively plaintiff's contributory negligence in failing to watch where he was going and in walking into an elevator shaft when, by the exercise of ordinary care, he would have discovered the danger.

Defendant-appellant contends that, in the circumstances shown in evidence, plaintiff was a licensee, not an invitee, and defendant owed plaintiff no duty to exercise due care. It is urged there was no substantial evidence introduced tending to show defendant had invited the public to approach his store through the rear door; but, should it be held otherwise, nevertheless, defendant says, it was not shown the elevator doors were in such close proximity and similarity of appearance to the rear entrance to the store as to demonstrate defendant's negligence, in the circumstances, or to justify plaintiff's mistake in entering the elevator doors. And defendant-appellant also contends plaintiff's own testimony shows he was contributorily negligent as a matter of law. Consequently, defendant-appellant urges, the trial court should have sustained defendant's motion for a directed verdict, and the trial court's action in granting the new trial was erroneous.

It was within the trial court's discretion to grant one new trial upon the ground the verdict of the jury in favor of defendant was against the weight of the evidence. However, such discretion was to be judicially, not arbitrarily, exercised. In considering the question whether the trial court (in granting the new trial upon the specified ground the verdict was against the weight of the evidence) was acting in the exercise of its judicial discretion, we will endeavor to ascertain if there was sufficient substantial evidence to sustain a verdict for plaintiff, the party to whom the new trial was granted. State ex rel. Atchison, T. & S.F.R. Co. v. Ellison, 268 Mo. 225, 186 S.W. 1075; Cullison v. Wells, 317 Mo. 880, 297 S.W. 370; Sawyer v. Winterholder, Mo. Sup., 195 S.W. 2d 659; Section 115, Civil Code of Missouri, Laws of Missouri, 1943, p. 388, Mo. R.S.A. Sec. 847.115.

There was evidence introduced tending to show defendant owns and operates a hardware store in his building fronting northwardly on Dunklin Street in Jefferson City. The main entrance is at the front, north, end of the store. Parallel with and east of the hardware store and on the southwest corner of the intersection of Dunklin and Madison Streets is the building about 30 feet wide occupied by a Kroger store, which store also fronts Dunklin Street. And defendant owns and operates a furniture store in a building in the same block but fronting eastwardly on Madison Street; a main entrance is at the front, east, end of this store. The rear (south) end of defendant's hardware store and the north side of defendant's furniture store are separated by a private alley 12 feet 11 inches wide. A single (four glass panes in the upper panel) door 3 feet 8 inches wide at the rear end of the store permits ingress and egress between the alleyway and the store; and the door is opposite to and across the alley from a door into the north side of the furniture store. The distance from the west side of the rear hardware-store door to the southwest corner of the hardware-store building is 4 feet 7 inches; and the distance from the east side of the door to the southeast corner of the store at the alley is 11 feet 5 inches; however, the entire width of the first floor of the hardware store is not represented by the total of these stated dimensions. There is an uninclosed "offset" at the southeast corner...