Lawson v. Higgins

• Decision Date: 06 April 1943
• Docket Number: 38307
• Citation: 169 S.W.2d 881,350 Mo. 1066
• Parties: Katherine C. Lawson, Appellant, v. Otto P. Higgins and Elizabeth F. Higgins, Respondents
• Court: Missouri Supreme Court

169 S.W.2d 881

350 Mo. 1066

Katherine C. Lawson, Appellant, v. Otto P. Higgins and Elizabeth F. Higgins, Respondents

No. 38307

Supreme Court of Missouri

April 6, 1943

Appeal from Jackson Circuit Court; Hon. Paul A. Buzard Judge.

Affirmed.

Frank H. Terrell and Charles W. Hess, Jr., for appellant.

The court erred in sustaining respondents' demurrer to plaintiff's second amended petition and dismissing the same because said petition did state facts sufficient to constitute a cause of action and to create a question for the jury. Wendt v. Zittleson Mfg. Co., 229 S.W. 1107; Kemper v. Gluck, 327 Mo. 733, 39 S.W.2d 330; Simmer v. May Department Stores, 282 S.W. 117; Culver v. Menden Coal Co., 286 S.W. 745; Myers v. Straus, 264 S.W. 801.

Mosman Rogers, Bell & Conrad for respondents.

(1) Plaintiff was the housekeeper and, therefore, is assumed to have been in charge of the conditions of the house. Modlagl v. Caysing Iron & Fndry. Co., 248 Mo. 587 154 S.W. 752; Corpall v. Atlas Welding & Cutting Co., 253 S.W. 506. (2) No negligence is alleged. Mere waxing of floors in a private home is not negligence. Ilgenfritz v. Mo. P. & L. Co., 340 Mo. 648, 101 S.W.2d 723; Nelson v. Schmeltzer, 265 N.W. 924; Alabama Power Co. v. McIntosh, 219 Ala. 546, 122 So. 677; Cluett v. Union Elec. L. & P. Co., 220 S.W. 865; Meyers v. Strauss, 264 S.W. 801; Jennings v. Bolte, 168 So. 377; Graham v. Laughlin, 283 N.Y.S. 218. (3) The court will take judicial notice of the fact that it is common practice to wax and highly polish floors in residences. See authorities under (2).

OPINION

Gantt, J.

Action by plaintiff on the theory that defendants negligently waxed the floors of their home, which caused her to fall and suffer injury. It is alleged in the petition that plaintiff was the housekeeper in defendants' home "for a period of time prior" to the fall and injury, and that as housekeeper she "was not required to maintain or wax the floors." The amount involved fixes appellate jurisdiction in this court. The trial court sustained the joint demurrer of defendants to three petitions on the ground that said petitions failed to state facts sufficient to constitute a cause of action. On the court sustaining the joint demurrer to the third petition and entering judgment for defendants, plaintiff appealed.

We have ruled that an invitee to a business building cannot recover for an injury suffered as the result of falling on a waxed floor of said building. [Ilgenfritz v. Mo. P. & L. Co., 340 Mo. 648, 101 S.W.2d 723; State ex rel. Golloday et al. v. Shain et al., 110 S.W.2d 719.]

Furthermore, it is ruled as follows: "The extensive use of hardwood, polished, waxed floors, furnished with rugs in homes, is common knowledge. Common experience teaches that this type of floor and furnishing, in such general use, is not inherently dangerous or a hazard to the safety of an employee or an invitee within the standard of care required." [Nelson v. Schmeltzer (Iowa), 265 N.W. 924; Cluett v. Union Elec. L. & P. Co. (Mo.), 220 S.W. 865, 868; Brown v. Davenport Holding Co., 279 N.W. 161, 118 A. L. R. 447.]

In the third (second amended) petition the allegations as to negligence are stated as follows:

(1) "That on said date the defendants were negligent and careless in that they negligently and carelessly permitted to be and maintained the said floor of said residence, owned by them, and where said plaintiff was by reason of her occupation compelled to work, in an exceedingly and very slippery and highly polished condition, which said floor was dangerously slick and not reasonably safe to work and walk upon; that said defendants knew, or by the exercise of ordinary care would have known, that said floor was dangerously slippery and liable to cause plaintiff to fall thereon while engaged in her duties as such employee and that persons walking and moving about thereon were in constant danger of slipping, falling and injuring themselves; that said knowledge on the part of the defendants was had in ample time to have made said floors reasonably safe, by the exercise of ordinary care, and to have prevented the injuries complained of herein; that said fall occurred to plaintiff while she was exercising due care for her own safety and without knowledge to her of the dangerous character of said floors as a direct and proximate result of the negligence and carelessness of the defendants as aforesaid.

(2) "Said defendants were further negligent and careless, in that they created the aforesaid situation by using excessive, unnecessary and dangerous methods in maintaining said floor, in that they used and applied waxes and other slippery polishing substances unknown to this plaintiff in uneven, excessive quantities, and said defendants were further negligent and careless in that they created and maintained the aforesaid situation by means of polishing cloths and polishing devices, excessively polished and rubbed said wax and other slippery substances unknown to this plaintiff so that they became so dangerously slick and polished."

The rule for construing a petition is stated as follows:

"In examining the foregoing petition, on the demurrers, for the purpose of ruling the question whether any cause of action is stated the petition must, under our Code, be liberally construed in arriving at its meaning 'but this court has uniformly held that the petition . . . must state the facts on which the pleader expects to recover. It will not suffice to plead conclusions of law or the conclusions of the pleader unsupported by the allegation of issuable facts.' [National Hollow Brake Beam Company v. Bakewell, 224 Mo. 203, 123 S.W. 561.] We take as true facts well pleaded and such inferences as necessarily and logically flow therefrom but the averment of conclusions of the pleader will not aid the pleading, will be disregarded, and the question of the sufficiency of the facts pleaded to support such conclusions and to state a cause of action remains, nor is a characterization of the facts which amounts to a mere conclusion admitted by the demurrer. [Mack v. Eyssell, 332 Mo. 671, 59 S.W.2d 1049; Stephens v. Mound City Liverymen Assn., 295 Mo. 596, 246 S.W. 40; State ex rel. Minnesota Mutual Life Ins. Co. v. Denton, 229 Mo. 187, 129 S.W. 709.] Too in ruling the sufficiency of the facts pleaded to state a cause of action the court will look to material and essential allegations which are not made as well as to those made. [Lackawanna Coal and Iron Co. v. Long, 231 Mo. 605, 133 S.W. 35.]" Thompson v. Farmers Exchange Bank, 333 Mo. 437, l. c. 455, 62 S.W.2d...