Mayes v. Byers
| Decision Date | 02 January 1943 |
| Docket Number | No. 33202.,33202. |
| Citation | 214 Minn. 54,7 N.W.2d 403 |
| Parties | MAYES v. BYERS et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Hennepin County; Frank E. Reed, Judge.
Action by Grace Mayes against Edward O. Byers, d. b. a. Byers Cafe, and another to recover for injuries sustained by plaintiff by falling on stairway in defendant's premises. From a judgment for plaintiff the Inland Bonding Company as surety on defendant's bond appeals.
Affirmed.
Orr, Stark & Kidder, of St. Paul, for appellant.
Samuel A. Warren, of Minneapolis, for respondent.
During the period covering the incidents here related, defendant Byers operated a cafe at 253 Hennepin avenue, Minneapolis. He had obtained a license to sell intoxicating liquor as an "on sale" dealer, and for the purpose of obtaining this license had filed a statutory bond in the sum of $3,000 pursuant to Minn.St.1941, § 340.12, Mason St.1940 Supp. § 3200-26, and a similar Minneapolis ordinance. Appellant was surety on the bond. The main room of the cafe contained a bar at which intoxicating liquor was sold. From a rear corner of the main room a stairway led to the women's toilet in the basement. The stairway was lighted by an electric light affixed to the ceiling over the stairway.
Plaintiff, a widow, was 55 years of age at the time of the accident here involved. About a month prior thereto she had worked at the cafe as marker for a game known as "14." For some two years she had visited the cafe regularly at least once or twice a week. She was entirely familiar with the premises and their condition. On November 12, 1938, at about 8:15 p. m., she went to the cafe for her dinner. After she had eaten she remained in one of the booths drinking coffee and smoking. Later she began drinking a series of whiskey highballs mixed with lime rickey until she had consumed a total of six. These drinks were interspersed with doses of black coffee, designed to keep her drinks from "bothering" her. If the allegations of her complaint are to be believed, the coffee did not accomplish its purpose. Later, a lady friend and two men acquaintances joined her. About 9:45 p. m., following the highballs and after she had won some chips at "14," she proceeded to the stairway for the purpose of going to the ladies' toilet. She was "very anxious" to reach her destination. While descending the stairway, she slipped, fell, and was seriously injured. The present action is brought to recover damages for these injuries from defendant Byers and appellant, the surety on his bond.
The complaint set forth the provisions of the Minneapolis ordinance, hereinafter referred to, alleged that plaintiff became intoxicated, and that after she was obviously intoxicated defendant Byers continued to sell her liquor. It alleged further that Byers negligently permitted the steps of the stairway to become so badly worn that they were unsafe for a person to walk upon, that he negligently failed to light the stairway, and that these various acts and omissions on the part of defendant caused plaintiff's fall. At the trial this theory of the case seems to have been abandoned, and it appears in the record that a stipulation was entered into between the parties "that the basis of this action will be on the contract obligation existing between the plaintiff and defendant Byers and not upon any negligent acts of the said defendant." In its answer the bonding company interposed a qualified general denial, admitted the execution of the bond, and pleaded contributory negligence on the part of plaintiff. At the trial, the court, on motion, struck out the plea of contributory negligence, and this is one of the errors assigned.
In his charge to the jury the court in substance instructed that if the stairway was not well lighted or if the steps were in such condition that they were not reasonably safe for use by patrons of the place, and if these conditions proximately caused the injuries complained of, the jury should find for plaintiff. The jury returned a verdict of $6,000 for plaintiff against each of the defendants. Negligence was thus left entirely out of the case. Under the instructions the verdict was based strictly upon violation of the relevant statutes and ordinances as giving a cause of action to plaintiff without proof of negligence.
The Minneapolis intoxicating liquor ordinance in force at the time of the accident required the execution of a bond from a licensee or "on sale" dealer in terms substantially identical with Minn.St.1941 § 340.12(4), Mason St.1940 Supp. § 3200-26d. Section 5(d) of the ordinance provided that the bond should be conditioned as follows:
The same ordinance also provided in § 21, among other detailed provisions relating to toilet room facilities: "Stairways to basement toilets shall be * * * of safe and substantial construction * * * and the same shall be well lighted at all times."
Pursuant to these statutory and ordinance requirements, the bond here sued upon was executed. The obligees therein are designated as "the City of Minneapolis * * * for the use and benefit of said City of Minneapolis and all persons suffering damages by reason of the breach of the conditions of this bond." Among the conditions of the bond, it was provided that the principal, Byers, should "obey and comply with the terms and provisions of the ordinances of the city of Minneapolis relating thereto [namely, the license]," and "the said principal shall * * * pay to the extent of the principal amount of this obligation any damages for death or injury caused by or resulting from the violation of any of the provisions of said act or ordinance."
The jury by its verdict has found that the ordinance was violated in the respects indicated by the charge, namely, by maintaining inadequate lighting and a stairway of unsafe construction. The evidence sustains this finding. Plaintiff's evidence was that the light was "poor" and "dim" and that the stairway was not well lighted. She stated also that the steps were worn from a quarter to three-quarters of an inch in depth in the center. There was other testimony that they were "rounded a little bit" or hollowed out. There was evidence contrary to that of plaintiff, and probably more persuasive, but it was within the province of the jury to determine whom it would believe.
Insufficient lighting and a defective stairway established, the evidence sustains the finding of the jury that these defects proximately caused plaintiff to fall. Her evidence is that she slipped on a step, and the jury was entitled to conclude that this was caused by the defects indicated. The case is analogous to Gross v. General Inv. Co., 194 Minn. 23, 259 N.W. 557. There the only evidence of proximate cause was proof of a defect in the gate leading to an elevator shaft and the testimony of a witness that the deceased, for whose death recovery was sought, fell into the shaft from the point at which the gate was located. The court held that the jury might properly conclude that a causal relation existed without resorting to the conjectural or speculative. The court said (194 Minn. 27, 259 N.W. 559): The reasoning applies here.
The claim is made that the ordinance in requiring stairways of "safe and substantial construction" meant only that the original construction should be safe and substantial and that it does not include maintenance of the stairway. The term "construction" may refer either to the erection of the structure or to its present condition. Which meaning it has must be determined in the light of the intent and purpose sought to be accomplished. Here it referred to the condition of the stairway —not merely to its original erection. To hold otherwise would defeat the purpose of the provision.
The striking of defendant's plea of contributory negligence raises a more serious question. Included therein, we may assume, is the claim that plaintiff was intoxicated at the time of the accident and that this contributed to her fall and resulting injuries. Although...
To continue reading
Request your trial