McCullen v. Fishell Brothers Amusement Company
| Decision Date | 04 December 1917 |
| Citation | 199 S.W. 439,198 Mo.App. 130 |
| Parties | BRIDGET McCULLEN, Respondent, v. FISHELL BROTHERS AMUSEMENT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Thomas C. Hennings, Judge.
AFFIRMED.
Judgment affirmed.
Holland Rutledge & Lashly for appellant.
(1) The petition does not state cause of action. It alleges that appellant maintained an open trapdoor and that deceased while lawfully on the premises, fell through same. There is no allegation of an invitation. The owner of premises owes no duty to trespassers or mere licensees to keep the premises in reasonably safe condition. O'Brien v. Western Steel, 100 Mo. 182; Straub v. Soderer, 53 Mo 38; Schmidt v. Kansas City Distilling Co., 90 Mo. 284; Whittee v. Stifel, 126 Mo. 295; Butz v. Cavanagh, 137 Mo. 503; Benson v. Baltimore Traction Co., 77 Mo. 535; Sterger v. Van Sticklen, 132 N.Y. 499; McGill v. Compton, Ill. 327; Evansville v. Terre Haute R. R., 100 Ind. 221; Muench v. Heinemann, 96 N.W. 800; Ryerson v. Bathgate, 51 A. 708; Manning v. Railroad, 16 L.R.A. 271; Redigan v. Railroad, 14 L.R.A. 276. (2) (a) The peremptory instruction asked by appellant should have been given. While there was testimony that appellant was to receive a portion of the receipts of the firm of Wilson & Jones, there was no evidence that appellant was to take any part in the business of said firm or share the losses thereof. Therefore, there was no partnership relation between the firm of Wilson & Jones and appellant. Mackie v. Mott, 146 Mo. 230; Sille Hardware & Iron Co. v. McCleverty, 89 Mo.App. 154; Mulholland v. Rapp, 50 Mo. 42; Bank of Odessa v. Jennings, 18 Mo.App. 65; Hansom v. Jones, 20 Mo.App. 595; Weise v. Moore, 22 Mo.App. 530; Hach v. Hill, 160 Mo. 18; Lockhart v. Forsythe, 49 Mo.App. 654; Ileyerle v. Hunt, 50 Mo.App. 541. (b) The firm of Wilson & Jones, while operating on the stage of appellant's theater, was operating as an independent contractor, and appellant was not liable for any negligence on the part of said firm. Burns v. McDonald, 57 Mo.App. 599; Kaiser v. Suppe, 133 Mo.App. 29; Burnes v. Railroad, 129 Mo. 41; Byre v. Jordan, 111 Mo. 428. (c) Where one normally and generally in the employ of A is loaned by A to B and operates under B's direction, such person is temporarily the servant and agent of B. and B. alone is liable for his negligent acts. Healy v. Wrought Iron Range Co., 161 Mo.App. 482; Hardy v. Shedden Coal Co., 477 U.S. App. 362; Standard Oil Co. v. Anderson, 212 U.S. 215; Nason v. Railroad, 22 U.S. App. 220.
Ryan & Thompson for respondent.
(1) The objection that the petition fails to state facts sufficient to constitute a cause of action should be ruled against appellant. Appelgate v. Railroad, 252 Mo. 173; Robinson v. Seay, 175 Mo.App. 713; Schneider v. Johnson, 164 Mo.App. 639. (2) Plaintiff's deceased husband came upon defendant's premises as an invitee of defendant and defendant owed him the duty of protecting him against traps and pitfalls. Glazer v. Rothschild, 221 Mo. 180; Appelgate v. Railroad, 252 Mo. 173; Moore v. Corte, 77 Mo.App. 500; Welsh v. McCallister, 15 Mo.App. 492; Bennett v. Railroad Co., 102 U.S. 585; Northwestern Electric R. Co. v. O'alley, 107 Ill.App. 599, 604; Cleveland, etc., Railway Co. v. Powers, 88 N.E. 1073 (Ind.); Note in 46 L.R.A. 59; Burner v. Higman, 127 Iowa 590; Sheyer v. Lowell, 134 Cal. 357; Tobin v. Railroad Co., 59 Mo. 185; Kinchlow v. Elevator Co., 57 Kan. 374; Atlanta Cotton Seed Oil Mills v. Coffey, 80 Ga. 145; Panckner v. Wakern, 231 Ill. 276.
Plaintiff is the widow of Andrew J. McCullen, deceased, and sues to recover damages for his death resulting from injuries sustained by him by reason of falling through an opening or "trapdoor" in the floor of a stage in a theatre building operated by defendant in the city of St. Louis.
It is charged that defendant negligently allowed the trapdoor to remain open, and that on July 6, 1913, plaintiff's husband, while lawfully upon the premises, and in the exercise of due care, fell through the opening to the floor below sustaining injuries from which he died on October 2, 1913. The answer contains a general denial and a plea of contributory negligence, and alleges that plaintiff's husband was not invited upon the premises and had no right to be there.
The trial, before the court and a jury, resulted in a verdict for $ 5000 in plaintiff's favor, and from a judgment accordingly entered thereon the defendant prosecutes the appeal.
The evidence discloses that during the period with which we are here concerned the defendant was a corporation with but three stockholders, viz., Dan Fishell, his brother, and a third person; the two stockholders other than Dan Fishell, being, it is said, merely "nominal stockholders." Dan Fishell was president of the company, and was referred to by a witness as having been "the whole show."
On and prior to July 6, 1913, defendant, engaged in conducting theatrical performances, was the lessee of a building known as the Princess Theatre, in the city of St. Louis, fronting on the east side of Grand Avenue near Olive Street. The stage, located in the east end of the building, extended across the entire building, i. e., from the south wall to the north wall, and it appears that in the floor thereof were a large number of trapdoors. Beneath the stage were basement rooms in which defendant's theatrical properties were kept, the granitoid floor of the basement being about eighteen feet below the level of the stage. In the south wall of the building was a large sliding door, operated by raising and lowering it, which opened from the stage upon an alley.
One Wilson and one Jones were actors in defendant's service, and had been with defendant for some years. In June, 1913, as the "theatrical season" was about to close, Wilson and Jones conceived the plans of forming a little theatrical company of ten persons from those who had been performing at defendant's theatre, for the purpose of giving certain performances during the summer of that year in "air-domes" in the city of St. Louis and elsewhere. It appears that when Fishell, defendant's president, learned of this, he summoned Wilson and Jones to his office on or about June 25, 1913, and, referring to the matter, said (as stated by Jones in testifying) that "he wanted to know where his bit was coming in," stating that he ought to get something out of the proposed venture. The evidence is that Wilson and Jones told Fishell that they could not give him any interest in the undertaking unless he would put something into it; that Fishell then suggested that they did not have the necessary wardrobe and scenery and would require a place for rehearsals, and that he would furnish these things. And it appears that after figuring out the "salary list" it was agreed that the defendant would furnish the wardrobe, scenery and theatre for rehearsals; that Wilson and Jones would pay the salaries of the members of the company, paying themselves each $ 50 a week as salary; and that the surplus over and above all expenses would be divided between the defendant and Wilson and Jones, defendant receiving fifty per cent. thereof. It was agreed, however, that defendant was not to bear any part of the losses, if any. It appears also that, at the instance of Fishell, it was then agreed that the "company" would be increased from ten to sixteen members.
One Nortemann was defendant's "property man," having been in defendant's employ for nearly three years. He was the custodian of defendant's wardrobe and stage scenery, and kept the key to the room in which these articles were stored. And the evidence is that, when the foregoing matters had been agreed upon, defendant's president called Nortemann into his office and in the presence of Wilson and Jones instructed Nortemann to give them whatever properties they might want; and that it was arranged that whenever Wilson and Jones might thereafter desire any of the properties they would notify Nortemann who was instructed to get them out and deliver them at the theatre.
It further appears that on June 26, 1913, defendant's president again called Wilson and Jones into his office and told them that he had arranged with the manager of "Delmar Garden" for the "company" to play the following week at that place, but it seems that for some reason this was not done. And it is said that defendant's president sent out a great many letters to various towns in Missouri and Illinois, endeavoring to "book" the company in those places.
After having given certain performances in the city of St. Louis this little company was engaged for a performance at a certain air-dome in that city, to be given on the evening of Sunday, July 6, 1913; and on the morning of that day Jones met Nortemann, by appointment, at defendant's theatre for the purpose of getting out certain stage properties of defendant for use in giving the performance mentioned including a "drug store counter." It appears that Nortemann knew what properties were desired and proceeded at once to get them out. He raised one of the trapdoors in the defendant's stage, laid it against the rear or east wall of the building, and with the help of a watchman raised the counter from the basement through the trapdoor opening and placed it upon the stage floor. It was found to be too long for the purpose for which it was desired, and Nortemann procured a saw and set about sawing off a portion of it. In the meantime the trapdoor, which, it is said, was about six feet in length and three feet wide, was left open. The opening was about three feet from the east wall, or rear of the stage, and about fifteen...
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