Lindsay v. Wille, 47748

• Decision Date: 10 July 1961
• Docket Number: No. 2,No. 47748,47748,2
• Citation: 348 S.W.2d 1
• Parties: Lucille R. LINDSAY and Mercantile Trust Company, a Corporation, Co-Executors of the Estate of Lota Clarkson Marshall, Deceased, Appellants, v. Albert F. WILLE and Mayfair Hotel Company, Inc., a Corporation, Respondents
• Court: Missouri Supreme Court

Page 1

348 S.W.2d 1

Lucille R. LINDSAY and Mercantile Trust Company, a

Corporation, Co-Executors of the Estate of Lota

Clarkson Marshall, Deceased, Appellants, v. Albert F. WILLE and Mayfair Hotel Company, Inc., a

Corporation, Respondents.

No. 47748.

Supreme Court of Missouri, Division No. 2.

July 10, 1961.

George F. Torrey, Frank Lee, Thomas M. Hayes, Jr., St. Louis, for appellant.

James J. Amelung, Holtkamp, Miller, Risch & Amelung, St. Louis, for respondent A. F. Wille.

F. Douglas O'Leary, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, for respondent Mayfair Hotel Co.

PER CURIAM.

This suit for $35,000 damages for personal injuries, filed by Lota Clarkson Marshall against Mayfair Hotel Company, Inc., and A. F. Wille, a patron of the hotel, resulted in a directed verdict for both defendants at the close of plaintiff's case. Plaintiff died pending her appeal, and upon the suggestion of her death the co-executors of her estate, Lucille R. Lindsay and Mercantile Trust Company, were substituted as appellants.

Mrs. Marshall's petition alleged that she was a paying guest; that as she was leaving the first floor lobby through a glass revolving door leading to the sidewalk on the St. Charles Street side of the hotel she was thrown, knocked down and injured through the combined negligence of the corporate and individual defendants. She charged negligence against the respective defendants as follows:

'That the Defendant A. F. Wille was negligent and careless at said time and place, in that he pushed and shoved and caused to be propelled the said large glass revolving door while Plaintiff was in said door and knocked it against her person so negligently and carelessly causing her to be propelled to the floor and to the ground.

'That the Defendant Mayfair Hotel Co. Inc. was negligent and careless at said time and place in the following respects, to-wit:

'(a) In permitting and allowing said Defendant A. F. Wille to so negligently and carelessly shove and push and propel said door directly into plaintiff.

'(b) In not preventing said Defendant A. F. Wille from so pushing and shoving and propelling said revolving door so negligently and carelessly into Plaintiff.

'(c) In not affording Plaintiff some help, care, or assistance, in going through and out of said revolving door, when it was known by said Defendant that Plaintiff was elderly and of advanced years, and was using a cane, and further, that Plaintiff was a frequent patron of said hotel operated by said Defendant.'

Separate answers were filed denying negligence and pleading contributory negligence as a defense.

In support of their single point on appeal--that the court erred in directing a verdict for defendants--appellants assert that a prima facie jury question of negligence and causation was made 'where the evidence disclosed that plaintiff was in a rotating door, slowly pushing it, that no one else except defendant Wille was in the door, that the rotating door suddenly moved forward fast and plaintiff was hit in the back and knocked forward 'like a stick without her knees bending' onto the sidewalk.'

In determining this point we state the evidence in the light most favorable to appellants, Cohagan v. Laclede Steel Co., Mo.Sup., 317S.W.2d 452, giving them the benefit of all reasonable inferences arising therefrom. Perry v. Dever, Mo.Sup., 303 S.W.2d 1, 4.

Mrs. Marshall, a 73-year-old widow lady, resident of Charleston, was driven to St. Louis in her automobile. She spent three days in the city on business, staying as a guest at Mayfair Hotel. On the day of question, July 17, 1958, desiring to leave the city, she checked out, paid her bill, made arrangements for the bellboy to bring her luggage to the lobby, and sat in the lobby to await the arrival of her automobile at the St. Charles Street entrance. When Eddie, the doorman, announced the arrival of the car Mrs. Marshall turned to the bellboy with her luggage, said 'My car is here,' arose, walked across the lobby to the metal revolving door, and entered the door. There was no one between her and the door when she started for the door. She was carrying a cane, and had her purse in her hand. The door consisted of four quarters, with a glass partition in each of the four sections. A person could see through the glass. There was a 'kick plate' below the glass. The door was stationary when Mrs. Marshall entered it. At that time there was no one else in the door. She put her hand on the crossbar; started the movement of the door; started pushing the door; started moving through. She was looking through the glass out toward St. Charles Street as she went through the door. She did not push hard. She walked slowly--at her regular gait. When she got in the door 'all of a sudden' she 'felt something hit' her in the back, near the shoulders. 'The bar on the door'--'that rod in that part back' of her--hit her in the back, so hard she was 'just knocked out.' The next thing she knew she fell on her left side on the rubber pad in front of the door, on the sidewalk side of the door. She was knocked down. She had been through five revolving doors that morning. She had been through this same door on each of the three days she had been a guest at the hotel. Excerpts from defendant Wille's deposition were read into the record as admissions against interest, by which the following facts were developed: Wille, a guest at the hotel, was aware of the accident involving Mrs. Marshall. He was in the revolving door in the compartment behind Mrs. Marshall. He could see her in the section directly ahead of him, although he could not see the lower portion of her legs because of the kick bar. He did not have his glasses on at the time. He was leaving the hotel, intending to get into his car and drive to his home in Moberly. The door was revolving; Wille was completely within his quarter section of the door and had taken a few steps, when he saw Mrs. Marshall go down. He did not see the door strike her back, but the door bumped her. Wille believed that the door bumped against her heels and caught her off balance and she fell forward. At the moment he saw her falling forward he 'grabbed the door.' Her knees did not bend--she fell over 'like a stick.' After she fell down he 'had to stand there'; he could not get out of the door because he was 'caught between the openings.' After Mrs. Marshall was assisted to her feet, Wille heard Mrs. Marshall make a remark (not disclosed by the record) to which Wille responded: 'I didn't have my cotton picking hands on the door.'

Under 'Points and Authorities' appellants assert error in sustaining the motions of both defendants for a directed verdict. In their argument appellants maintain that a prima facie case was established 'as to at least one defendant,' without saying which defendant. The transcript indicated that at the trial plaintiff's counsel admitted that no case had been made against the hotel company. In their argument appellants advance no reason why the case should have gone to the jury as to the hotel company. We nevertheless have reviewed the case as to both defendants. Our review leads us to the conclusion that no submissible case was made against either defendant on any theory.

No case was made against the hotel company on the theory that it permitted Wille to shove, push or propel the door into Mrs. Marshall, or failed to prevent this from happening. Under the facts shown the hotel company owed Mrs. Marshall no duty to anticipate or prevent injury at the hands of Wille. The occupant of a business property is not liable for the misconduct or negligent acts of third persons who are not acting under its direction or control or which it reasonably could not have anticipated or guarded against. Rush v. Townsend & Wall Co., Mo.Sup., 343 S.W.2d 44, 50; Tuttle v. Kline's, Inc., 230 Mo.App. 230, 89 S.W.2d 676; Wiedanz v. May Department Stores Co., Mo.App., 156 S.W.2d 44, 48; Annotation: Injury to Customer by Crowd, 20 A.L.R.2d 49; Smith v. Johnson, 219 Mass. 142, 106 N.E. 604, L.R.A.1915F, 572.

Nor was a case made against the hotel company on the theory that the latter failed to help and assist Mrs. Marshall through the door. Under ordinary circumstances and in...