Main v. Lehman

Decision Date16 June 1922
Docket NumberNo. 23065.,23065.
Citation243 S.W. 91,294 Mo. 579
PartiesMAIN v. LEHMAN.
CourtMissouri Supreme Court

Appeal from Circuit Court, Buchanan County; Lawrence A. Vories, Judge.

Action by Isabella Main against Maurice H. Lehman. Judgment for plaintiff, and defendant appeals. Reversed.

Oliver C. Mosman, of Kansas City, and Vinton Pike, of St. Joseph, for appellant.

Mytton & Parkinson, of St. Joseph, for respondent.

SMALL, C. I.

Appeal from the circuit court of Buchanan county. Suit for personal injuries from falling over step in defendant's store by plaintiff, who was shopping therein. Plaintiff's evidence:

Plaintiff herself testified:

Was hurt November 18, 1919. Went in store to buy goods about 9 a. m. Asked saleslady on second floor where customers' toilet was. She said on third floor; told me how to get there. Went up in elevator. Toilet was in room in extreme northwest corner of third floor. Toilet partitioned off; window in west end of room outside of toilet. Toilet she entered was immediately north of this window next to the west wall. Seat or stool was on platform, 6 inches higher than floor. Cannot tell how far edge of platform was from door, think about 2 feet. Question by plaintiff's counsel: "If this is a foot rule, would that be possibly about a foot? A. Yes, sir." The door into the toilet did not reach the floor, but went below the top of the platform about 3 inches. When toilet door was closed could not tell how far out edge of platform extended. There was no artificial light in the toilet. When I went in, I noticed there was a step there; I thought it came out as far as the door. As I went to leave toilet, I went to step out, and as I stepped I set my foot to go out, and I fell with all my force on this hand. I put my foot out, to step out, to step down. The closet door was closed. I just rose up, just stepped and put my hand out as I stepped, and as I stepped I fell forward onto the floor and threw all my weight on this hand. I stepped off from the step. I thought it extended farther out. I stepped over it, and it threw me down. I looked as I stepped, but it was so dark I could not tell. I thought the platform went as far as the door. It was so dark at my feet I could not tell.

Cross-examination:

Had never been in this toilet before. The window is close to the toilet because the toilet door swings back against the window and covers the window. No, did not cover quite all, I suppose. Think platform lacked about 2 feet of extending to the door; could not see any light on the floor under the door. It was very dark. As I went to leave, I stepped and put my hand out at the same time. Door was not fastened; it had a string to it. I held the door shut by holding onto the string. When I let go of string, I started to push door. Door did not swing open of its own motion when I let go of string. I just let go and pushed and stepped at same time. I noticed the step there as I went in and closed the door. Door was not closed when I came into the room. As I came in I could see this step. In toilet about a minute and a half. Did not stand there looking down to see how far the step extended. When I got ready to leave, I simply took this step and pushed the door open at the same time. I saw the outline where the step was before I opened the door, but it was so dark I could not tell how far it went out; I supposed it went as far as the door. My neighbor, Mrs. Means, was in the next toilet to me. She went to her mother's beyond Kansas City last Sunday. We had been shopping together. There was a board partition between me and Mrs. Means. Window sill was about 2 feet above the floor. Cannot tell how much higher top of window was than top of door. I noticed light above. As I stood there I saw the door. I could see; that was above me and it was light. Had something like drab or gray paint on it; could not positively say. I saw string on door as I went in. As I sat on toilet, my feet rested on space of about 18 inches on platform; could not tell exactly. I could not see under the door. I looked and saw darkness. "Q. You did that while sitting there? A. The door was close up against it, and it was so dark you couldn't tell." You can see the step there. While the door was open and I started in, I could see plainly enough. I didn't simply forget all about this step when I came out. I thought it extended farther out. I knew I would have to take one step down, but I thought it was out farther than it was.

Miss Lillian Thomas testified for plaintiff:

Used toilet as customer number of times. The toilet door was about a foot from the edge of the platform, which was about 6 inches higher than the floor. The stool was on the platform, and from it to the edge of the platform was about a foot. Door about 2 inches from floor on west side and sags nearly to the floor on the east. Can't see floor in front of platform sitting on stool (referring to about 9:30 in the morning). Door 7 feet high. Partition below window. Window sill 2½ feet above the floor; window reaches to ceiling of room 3 feet above door and partition. Door not fastened—only a little string. Toilet located in room on third floor right next to window which opened on alley; two-story building across alley; no shades on window. In the afternoon the sun came in there, it being then in the west, and it would naturally make the light come in through the window down into that closet and make the whole room brighter. In the morning the sun does not strike that west window; you can see the light under the door, but it does not extend back into the toilet room; you can see the light on the floor. After you open the door, you can see the stool, the step, and everything plainly; no trouble at all. No top over the toilet.

Inez Osborn, former employee, testified for plaintiff, and her testimony corroborated Miss Thomas as to the location, light, dimensions, measurements, etc., of the toilet and its surroundings.

T. A. Main, plaintiff's son, had seen and examined the toilet in question, and described it and the surroundings substantially as Miss Thomas and his mother, except that he said that the door had been raised up several inches the last time he saw it, and he described the window as a large window, whereas Miss Thomas said it was an ordinary sized window. He was there also in the afternoon, and said that then the sun shines right into the toilet through the window. The injury to plaintiff consisted of broken and dislocated bones in her right hand which left it disfigured and much weakened.

On the part of the defendant, a number of witnesses testified to the effect that the toilet was abundantly lighted by the window at all times of day, and that they could see to read newspapers at 9 a. m. sitting on the toilet seat with the door shut, and that the platform and step-off were also then plainly visible; that the door was about 6 to 8 inches above the floor. The other measurements were substantially as stated by plaintiff's witnesses.

As to the use of toilet by customers defendant's evidence was as follows: Miss Thomas, one of defendant's employees said on cross-examination:

"Q. This is the toilet the customers use? A. Yes, sir. Q. Provided for them? A. Yes, that is the one we use. Q. You direct the customers? A. No, I never use it; never direct them; seen them come in; never happen to be in there when there would be strangers, just the ones that work in the house. Q. That is the only one provided for the customers? A. It is the only one there. I don't know whether they allow customers or not."

Defendant, M. H. Lehman, testified on that subject on cross-examination:

"Q. Is that a ladies' toilet—lady customers? A. It is intended for the employees. Q. And customers when they need it? A. I couldn't tell you, for this reason, no lady would come to me to ask to be directed to the toilet. Q. It is the only one you provide for your customers? A. For our customers? Q. Yes. A. If they use it, they could; I don't send them there. Q. They go to the ladies there in the store? A. Yes. Q. You would not know to what extent they used it otherwise? A. No, sir."

Defendant also introduced in evidence a photograph taken about 3:30 in the afternoon showing the two toilets as defendant's evidence tended to show they existed at the time of plaintiff's injury. It shows room perfectly lighted and door in toilet apparently about six inches above floor. Court gave certain instructions for the plaintiff and also for the defendant, but refused an instruction in the nature of a demurrer to the evidence asked by the defendant. The jury returned a verdict for plaintiff for $2,500. Defendant Lodged his appeal in the Kansas City Court of Appeals, but that court affirmed the judgment below because the court found the bill of exceptions as shown by the abstract did not appear to be signed by the judge. Judge Trimble dissented and requested that the cause be certified to this court, which was ordered done May 23, 1921.

April 13, 1921, appellant filed in the Kansas City Court of Appeals a duly certified transcript showing that the concluding part of the original bill of exceptions was as follows:

"And having written out this, his bill of exceptions, defendant prays that the same may be allowed, signed and enrolled among the records in the cause, which is accordingly done this 8th day of November. L. A. Vories, Judge of the Circuit Court of Buchanan County, Division 2."

In this court no further question is raised as to the signing of the bill of exceptions.

II. The first point is whether the plaintiff was an invitee or a mere licensee. The evidence shows she was a customer at defendant's store and that the toilet in question was allowed to be used by defendant's customers as well as by his employees. She was therefore an invitee, and as such the defendant was bound to exercise reasonable care to keep the toilet in a reasonably safe condition for use, and not simply to refrain from...

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