Kallum v. Wheeler

• Decision Date: 03 February 1937
• Docket Number: No. 1654 - 6753.,1654 - 6753.
• Citation: 101 S.W.2d 225
• Parties: KALLUM v. WHEELER.
• Court: Texas Supreme Court

101 S.W.2d 225

KALLUM v. WHEELER.

No. 1654 - 6753.

Commission of Appeals of Texas, Section B.

February 3, 1937.

Error to Court of Civil Appeals of Eleventh Supreme Judicial District.

Suit by J.T. Kallum against John W. Wheeler. A judgment for plaintiff was reversed by the Court of Civil Appeals [68 S.W.(2d) 591], and plaintiff brings error.

Reversed and judgment of trial court affirmed.

Cox & Hayden, of Abilene, for plaintiff in error.

Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, for defendant in error.

TAYLOR, Commissioner.

This is a personal injury suit by J.T. Kallum against John W. Wheeler. A jury trial resulted in a judgment in Kallum's favor. The Court of Civil Appeals reversed the trial court's judgment and rendered judgment in favor of Wheeler. 68 S.W.(2d) 591. The writ was granted on alleged conflicts.

The injuries complained of were sustained by Kallum as the result of his falling through the floor of a passageway extending across the front of the second story of a business building owned by Wheeler. The building is between and adjacent to two others. The three constitute a solid block of business buildings, and front south on North Front street in Merkel, Tex., a town of about 2,000 inhabitants. For convenience, they will be designated as the Boney building, the Wheeler building, and the Warren building. The Wheeler building is located in the center and is adjoined by the other two, the Boney building on the west and the Warren building on the east. The last named is one story in height. The other two are two stories high and each has office space on the second floor. A stairway located on the inside of the Boney building leads to the upstairs offices in that building. The means of entering the upstairs office of the Wheeler building is a passageway extending from the sidewalk in front of the Warren building to the door which opens into the office. The door is located on the front of the building west of the center. The passageway consists of a steel stairway and its landing erected on the front of the Warren building and a platform or awning erected on the front of the Wheeler building. The stairway begins at the sidewalk in front of the southeast corner of the Warren building and runs up and westward across the front of that building to where the landing joins the platform. The platform, which serves the dual purpose of awning and passageway, extends across the front of the Wheeler building to the door referred to. The stairway was on the front of the Warren building when both that building and the Wheeler building were owned by Warren. In 1909 Warren sold the middle building and the stairway on the east building to Wheeler. While the stairway was located on the front of the Warren building, it served only the upstairs offices on the second floor of the middle building and was sold to Wheeler as a part of it.

When Wheeler purchased the building, the Woodman Circle was occupying a part of the office space upstairs and the city council a part. A cotton exchange had an office there after the Woodmen and city council ceased using it. Later an employee of the restaurant on the lower floor of the building rented it for sleeping quarters. That was in 1929. Later Dr. Gambill, a dentist, had some of his things stored there. At the time of the accident involved Wheeler had no tenants in the office space on the second floor of his building, and had had none for about three years. The east half of the lower floor was occupied by Buford's barber shop, and the west half by a café.

Kallum was an inspector of the state board of barber examiners and was at Merkel in connection with his duties on the occasion of his injuries. While there, he had occasion to go to Dr. Gambill's office. He had been told shortly before the accident that the office was upstairs near Buford's barber shop. Kallum mistakenly believing the office upstairs over Buford's shop in the Wheeler building to be Dr. Gambill's office, went up the stairway and onto the passageway leading to the door of the office on the second floor of the Wheeler building. As he approached the door, the flooring of the awning, or passageway, gave way, precipitating him to the sidewalk below.

Kallum, after describing in his petition the premises on which the accident occurred and the adjacent building and stairways, alleged that in going upon the stairway and awning leading to the offices on the second floor of the Wheeler building he was an invitee on the premises and that defendant Wheeler owed him ordinary care to properly supervise the same so as to avoid injurying him; that he was negligent in failing to close the stairway leading to the landing or awning described in order to keep the public and him especially from using same, and was also negligent in failing to exercise ordinary care in the matter of inspecting the awning or landing to ascertain the existing condition; that he was negligent in maintaining the awning or landing adjacent to the entrance to the second story of his building in its decayed and rotten condition and open to the general public, and also negligent in failing to put up and maintain some kind of warning sign or danger sign, or some barrier to entering the stairway.

The floor of the platform was constructed of pine, "two by eights" or "two by sixes." Wheeler stated he had reconstructed it about ten years prior to the accident and that it was exposed to the elements and that he had not repaired or inspected it since that time.

The jury found that Kallum was not negligent in going upon the awning.

Kallum after passing upon the awning from the stairway proceeded along the passageway about twenty feet until it gave way and he fell through it. Where he fell through appears to be just in front of the door which opens into the upstairs of the building.

With respect to the condition of the floor, Wheeler said he saw the hole through which Kallum fell and saw the decay and deterioration after the fall. The jury found it was unsafe to go upon, and that Wheeler knew of its unsafe condition; that he was negligent in permitting the awning to be in the condition it was in at the time of the accident; and that such negligence proximately caused the injuries. The jury found also that Kallum did not know of its unsafe condition and could not have known of it by the exercise of ordinary care; that he believed at the time he fell he was going to Dr. Gambill's office and was not negligent in going upon the awning. The jury also found that Wheeler was negligent in "failing to place an obstruction or sign on the stairway to prevent people from ascending it," which proximately caused the injuries.

Wheeler stated he did not put any sign or barrier upon the stairway indicating the upstairs was no longer occupied after the tenants moved out; also that after the offices had been vacated he left the stairway and platform arrangement just as it was when the offices were occupied. Wheeler knew the office was unoccupied, and of the condition of the passageway. Kallum did not. Wheeler stated the door was locked and the windows nailed down; that he "first tried to keep it locked," but could not, and "put a board on the inside * * * and then nailed it to the floor so they could not push it open." "Yes," he said, "somebody broke (it open) and went in there. I guess that is when they took that first plank down I had nailed in there."

The Court of Civil Appeals in reversing the judgment of the trial court in Kallum's favor and in rendering judgment in favor of Wheeler, did so upon the theory that Kallum was a trespasser upon the premises.

The...