Irby v. St. Louis County Cab Co.

• Decision Date: 27 December 1977
• Docket Number: No. 39270,39270
• Citation: 560 S.W.2d 392
• Parties: Anita IRBY, Plaintiff-Appellant, v. ST. LOUIS COUNTY CAB COMPANY, a corporation, LaVerne Coffman, Frank Parker and Donald Smith, Defendants-Respondents. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 392

560 S.W.2d 392

Anita IRBY, Plaintiff-Appellant, v. ST. LOUIS COUNTY CAB COMPANY, a corporation, LaVerne Coffman, Frank Parker and Donald Smith Defendants-Respondents.

No. 39270.

Missouri Court of Appeals, St. Louis District, Division One.

Dec. 27, 1977.

Elmer C. Oberhellmann, St. Louis, for plaintiff-appellant; McBride & Simon, St. Louis, of counsel.

Armstrong, Teasdale, Kramer & Vaughan, John P. Emde, William J. Travis, Jeffrey D. Fisher, St. Louis, for defendants-respondents.

McMILLIAN, Judge.

Plaintiff-Appellant Anita Irby appeals from the order of the circuit court of the City of St. Louis sustaining the defendant-respondent's motion to dismiss with prejudice her fifth amended petition for failure to state a claim upon which relief can be granted.

On March 4, 1976, plaintiff filed her fifth amended petition seeking recovery for the wrongful death of her husband, Galen Irby, and naming as defendants, St. Louis County Cab Company, and LaVerne Coffman, Donald Smith, and Frank Parker, employees of the St. Louis County Cab Company. Plaintiff alleged in essence that (1) on December 17, 1974, Galen Irby, decedent, was working for the defendant, St. Louis County Cab Company as an "independent cab driver"; (2) on December 17, 1974, at 7:52 p. m., defendant through its agents, LaVerne Coffman, Donald Smith, and Frank Parker, dispatched the decedent to respond to a request for a taxi at 5616 Vernon Avenue in St. Louis, a known "high crime area"; (3) as a result of the business relationship between defendant and plaintiff's decedent, defendant had a duty to exercise ordinary care in dispatching the decedent into "high crime areas," and provide means to protect him from intentional criminal acts of third persons; (4) as a direct and proximate result of the negligence and carelessness of the defendant in dispatching the decedent to the "high crime area," and failing to provide means to protect him from intentional criminal acts of third persons, Galen Irby was murdered; (5) as a direct and proximate result of defendant's negligence and carelessness, plaintiff incurred $1200.00 burial expenses, and the loss of support from her husband to the extent of $750,000.00.

Count II realleged paragraphs 1 through 6 of Count I and is similar in every respect, except the plaintiff alleged in addition: (1) the duty of care arose as a result of a contractual agreement between the deceased and the defendant; and (2) by said agreement defendant owed a duty to exercise discretion in dispatching deceased to a high crime area.

Defendant St. Louis County Cab Company filed a motion to dismiss stating that plaintiff's fifth amended petition fails to state any facts which, if true, would indicate any negligence of the defendant; further as a matter of law, plaintiff's petition indicates the direct and proximate cause of decedent's death was not the events or occurrences which plaintiff claims to be the negligence of defendants; and even if defendant had failed to act as alleged, the death of the decedent would not have been prevented. Defendant contends in his motion that Count II should be dismissed because it is redundant, and purports to be based on contract which is not included as an action under the wrongful death statute.

By consent of the parties, the trial court considered the motions to dismiss of all the defendants and sustained the same for the reason that plaintiff's petition fails to state a claim upon which relief can be granted. This appeal followed.

Appellant raises two issues on appeal: (1) the trial court erred in dismissing plaintiff's fifth amended petition for failure to state a claim upon which relief could be granted, "because said petition clearly establishes a duty owing from defendant to plaintiff's decedent," and (2) the trial court erred "because said petition plainly sets forth sufficient facts to establish foreseeability and proximate cause."

It is well settled in Missouri that a petition is not to be dismissed for failure to state a claim upon which relief can be granted unless it appears that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Laclede Gas Co. v. Hampton Speedway Co.,520 S.W.2d 625 (Mo.App.1975). In reviewing ". . . the sufficiency of a petition on a motion to dismiss, we give the averments a liberal construction and accord the petition those reasonable inferences fairly deducible from the facts stated." Dix v. Motor Market, Inc., 540 S.W.2d 927, 929 (Mo.App.1976); Scheibel v. Hillis, 531 S.W.2d 285, 289 (Mo.1976).

A petition seeking damages for actionable negligence must allege ultimate facts, which, if proven, show (1) existence of a duty on the part of the defendant to protect plaintiff from injury, (2) failure of the defendant to perform that duty, and (3) injury to the plaintiff resulting from such failure. Scheibel v. Hillis, supra, at 288; Stevens v. Wetterau Foods, Inc., 501 S.W.2d 494, 498 (Mo.App.1973); Wise v. Towse, 366 S.W.2d 506, 510 (Mo.App.1963). Therefore, if the allegations in plaintiff's petition, taken as true, do not satisfy the elements of actionable negligence as set out above, the trial court correctly dismissed the petition for failure to state a claim. Dix v. Motor Market, Inc., supra, at 932.

Appellant contends that her petition "clearly establishes a duty owing from the defendant to plaintiff's decedent." The existence of such a duty is essential to her cause of action. A duty to exercise care may not only be imposed by a controlling statute or ordinance or assumed by entering into a contractual relationship, but also may be imposed by common law under the circumstances of a given case. Scheibel v. Hillis, supra, at 288; Zuber v. Clarkson Const. Co., 363 Mo. 352, 251 S.W.2d 52, 55 (1952). Where the existence of a duty is established, however, it is not one to protect against every possible injury which might occur. Schlegel v. Knoll, 427 S.W.2d 480 (Mo.1968). The duty of care is limited to the protection of one from reasonably foreseeable danger. The test of whether there is a likelihood of future events giving rise to a duty to take precautions to avoid it, ". . . is not the balance of probabilities, but of the existence of some probability of sufficient moment to induce the reasonable mind to take the precautions which would avoid it. . . ." Zuber v. Clarkson Constr. Co., supra, 251 S.W.2d at 55. It is said that, ". . . ordinarily, the duties imposed by the law of negligence arise out of circumstances and are based on foreseeability or reasonable anticipation that harm or injury is a likely result of acts or omissions. . . ." Green v. Kahn, 391 S.W.2d 269, 275 (Mo.1965).

Appellant's petition alleges...