Lambert v. Jones

• Decision Date: 12 November 1936
• Docket Number: 33038.
• Citation: 98 S.W.2d 752,339 Mo. 677
• Parties: Violet Lambert, a Minor, by Mary Lambert, Her Next Friend, v. C. O. Jones, Thomas H. Geary, Doing Business as the Geary School of Dancing, and the Armour Building Company, a Corporation, Appellants
• Court: Missouri Supreme Court

98 S.W.2d 752

339 Mo. 677

Violet Lambert, a Minor, by Mary Lambert, Her Next Friend, v. C. O. Jones, Thomas H. Geary, Doing Business as the Geary School of Dancing, and the Armour Building Company, a Corporation, Appellants

No. 33038

Supreme Court of Missouri

November 12, 1936

Appeal from Circuit Court, Jackson County; John R. James, Judge.

Action by Violet Lambert, a minor, by Mary Lambert, her next friend against C. O. Jones, Thomas H. Geary, doing business as the Geary School of Dancing, and another. During the pendency of the action, Violet Lambert died, and the case was revived in the name of Mary C. Lambert, her administratrix. Judgment for plaintiff, and the named defendants appeal.

Reversed and remanded (with directions).

J. Harold Olson and Frank H Backstrom for C. O. Jones; Beardsley & Beardsley, J John Gillis and Harry L. Donnelly for Thomas H. Geary.

(1) The evidence fails to show that C. O. Jones was guilty of any positive wrong or that he personally participated in any wrongful act which caused plaintiff's injury. 14a C. J., pp. 176, 177, secs. 1955, 1956; Wolfersberger v. Miller, 327 Mo. 1150, 39 S.W.2d 758; Ray County Savs. Bank v. Hutton, 224 Mo. 42, 123 S.W. 47; O'Neil v. Young & Sons Seed Co., 58 Mo.App. 628; Darling & Co. v. Fry, 24 S.W.2d 722. (a) C. O. Jones as president of the Armour Building Company was not liable to the plaintiff for any act of nonfeasance, misfeasance or malfeasance of subagents employed by the Armour Building Company. 2 C. J. 829, sec. 503; Canfield v. Ry. Co., 59 Mo.App. 354; Folwell v. Miller, 145 F. 495; Smith v. Rutledge, 332 Ill. 150, 163 N.E. 544, 61 A. L. R. 273. (b) C. O. Jones, as president of the Armour Building Company, owed no duty to third persons with respect to the inspection or repair of the stairway in question. McGinnis v. Ry. Co., 200 Mo. 347, 98 S.W. 590; Carson v. Quinn, 127 Mo.App. 525, 105 S.W. 1089; Orcutt v. Century Bldg. Co., 201 Mo. 424, 99 S.W. 1062; Vaughn v. Mountain Grove Creamery Co., 275 S.W. 592; Guthrie v. Wenzlick Real Estate Co., 54 S.W.2d 801; Smith v. Rutledge, 332 Ill. 150, 163 N.E. 544. (2) C. O. Jones, as president of the Armour Building Company, owed no duty to third persons to maintain sufficient lights in the stairway and halls of said building. (2) Defendant Thomas H. Geary, doing business as Geary's School of Dancing, a tenant of defendant Armour Building Company, was entitled to have his demurrer to the evidence sustained since there was no evidence to identify him as the one in control of both stairway and lighting system therein used by all tenants as a common passageway to and from the second and third floors to the street including those patrons of the theatre who might use the emergency door for egress from the balcony. McGinley v. Alliance Trust Co., 168 Mo. 257, 66 S.W. 153, 56 L. R. A. 334; Turner v. Ragan, 229 S.W. 809; Roman v. King, 289 Mo. 641, 233 S.W. 161, 25 A. L. R. 1263; Brewer v. Silverstein, 64 S.W.2d 289; Miller v. Gesser, 193 Mo.App. 1, 180 S.W. 3; Fabel v. Boehmer Realty Co., 227 S.W. 857; Harakas v. Dickie, 23 S.W.2d 651; Hunter v. Schuchart, 267 S.W. 411; Gentili v. Dimaria, 89 S.W.2d 93; Wilson v. Jones, 182 S.W. 756; Winters v. Hassenbusch, 89 S.W.2d 546; Karp v. Barton, 164 Mo.App. 389, 144 S.W. 1111; Mitchell v. Foran, 143 Kan. 191, 53 P.2d 490; Bleisch v. Helfrich, 6 S.W.2d 978. (3) The refusal of the trial court to give Instruction 17 on behalf of the defendant, C. O. Jones, was erroneous and the failure to give such instruction prevented the jury from considering the defense of C. O. Jones as submitted in this instruction. 64 C. J. 805, sec. 672; Bloecher v. Duerbeck, 333 Mo. 359, 62 S.W.2d 553; Jordan v. Daniels, 27 S.W.2d 1052.

Hipsch & Sadler, Harold Waxman and Chas. N. Sadler for respondent.

(1) The court did not err in overruling demurrer of defendant C. O. Jones, because (a) C. O. Jones was either the owner of the building or was in charge of and had exclusive control of said building and in either event, was personally liable for acts of omission and commission. Orcutt v. Century Bldg. Co., 99 S.W. 1062; Vaughn v. Mountain Grove Creamery Co., 275 S.W. 592; Guthrie v. Weinzlick Real Estate Co., 54 S.W.2d 801; Carson v. Quinn, 105 S.W. 1089; Robinson v. Moark-Nemo Consol. Min. Co., 163 S.W. 885. (b) If agent is the real owner, same may be shown even though record title is in a corporation. Ray County Savs. Bank v. Hutton, 123 S.W. 47. (2) The court did not err in overruling the demurrer of Thomas H. Geary, because it was the duty of said appellant to exercise ordinary care to keep the stairway which he invited the public to use in coming to his place of business, in a reasonably safe condition and lighted, for their use in so doing, and a failure so to do is negligence. Petera v. Ry. Exchange Bldg., 42 S.W.2d 949; Baries v. St. L. Indep. Packing Co., 46 S.W.2d 952; English v. Sahlender, 47 S.W.2d 150; Barnes v. Natl. Biscuit Co., 3 S.W.2d 254; Scott v. Klines, 284 S.W. 832. (3) The court did not err in refusing to give Instruction 17 on behalf of defendant C. O. Jones, because said C. O. Jones had a nondelegable duty to keep the said stairway sufficiently lighted to make it reasonably safe for use. Bleisch v. Helfrich, 6 S.W.2d 978; Stein v. Buckingham Realty Co., 60 S.W.2d 714. (4) The court did not err in giving instructions 1, 2, 3, 4, 5 and 6, asked by plaintiff. Said instructions are not misleading, confusing or conflicting and are based upon the evidence. Authorities under Points (1), (2), and (3).

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE, Commissioner.

This is an action for damages for personal injuries. Plaintiff obtained a verdict for $ 10,000 against all three defendants. From the judgment entered on this verdict, only defendants Jones and Geary have perfected appeals. Plaintiff has recently died and the matter has been revived in the name of Mary C. Lambert, her administratrix. Both appealing defendants assign as error the overruling of their separate demurrers to the evidence at the close of the case and the giving of instructions which authorized a verdict against each of them on both grounds of negligence alleged.

Plaintiff was injured by falling on a stairway and charged as common-law negligence against all defendants insufficient lighting and failure to repair a loose step. Both grounds were submitted as a basis of liability of all defendants. The title to the building was in the Armour Building Company, a corporation. Jones was the president of this company and Geary was one of its tenants. The ground floor of the building was used as a moving picture theater. On the second floor, there were offices occupied by doctors. The whole third floor was rented to Geary, who had conducted a dancing school there, for several years before the Armour Building Company purchased the building. There was a separate entrance from the street for the tenants on the second and third floors. Inside the entrance lobby there was a stairway of six steps going up to a landing between the first and second floors. At the left of this landing there was another landing one step up. From this second landing there was another stairway of thirteen steps, which went to the hallway of the second floor. In this hallway, there was a door, leading from the balcony of the theater, used for an emergency exit. There was also a hallway leading to the doctors' offices, and about twenty feet back from the top of this stairway (from the street entrance to the second floor) there was a stairway leading to the third floor which, including the landing at the bottom, had fourteen steps.

So far as appears from the record, the stairway never was lighted by the owner of the building but this was done by the tenants. Geary had lights in this stairway which were operated by a switch on the third floor. These lights were turned on by his switch, and operated through his separate meter. He had two lights on the third floor, at the top of the stairway from the second floor; two on the second floor, at the top of the stairway coming up from the landing between the first and second floors; and one in the entrance lobby. Three nights each week Geary held public dancing classes for which he charged an admission fee. At other times, he rented the hall for public dances and for other public purposes. There was a separate set of lights operated from the doctors' offices with one light in the entrance lobby and a larger one on the second floor near the top of the stairway. When Geary's dance hall was in use the lights operating through his meter were turned on, and when the doctors had patients at night they turned on their own lights, which operated through their separate meter. It was further shown that there were four round windows in the second hallway and an entrance lobby window which let in light from the street lights outside. There was also a red light above the emergency door of the theater in the second floor hallway.

Plaintiff was injured on the night of October 15, 1930, while she was on her way out of the building after attending dancing classes at Geary's hall. She had formerly worked for Geary as a dancing instructor but was attending his dancing school that night as a visitor and to see about working there again. Plaintiff descended safely to the second floor and also from the second floor to the landing between the first and second floors. She fell down the "last flight of stairs right to the door." She said she was just walking naturally, although defendants' evidence was that she was running down the stairs. She said she fell on the second step of this last flight of stairs and "fell all the way down the steps." She said that the step "gave way" with her and tripped her. Plaintiff had been up...