Menteer v. V. Scalzo Fruit Co.

• Decision Date: 27 February 1912
• Citation: 144 S.W. 833,240 Mo. 177
• Parties: MENTEER v. V. SCALZO FRUIT CO.
• Court: Missouri Supreme Court

144 S.W. 833

240 Mo. 177

MENTEER v. V. SCALZO FRUIT CO.

Supreme Court of Missouri, Division No. 2.

February 27, 1912.

1. NEGLIGENCE (§ 32)—USE OF PREMISES—INVITATION.

A merchant's duty to use ordinary care to keep premises to which he expressly or impliedly invites customers in a safe condition arises out of the invitation, which cannot be enlarged by the customer to include parts of the premises to which it does not extend, and, when the customer or invitee steps beyond the bounds of his invitation, he is a mere licensee at most, and can complain only of wanton or intentional injury or active negligence, and so a customer of a fruit company who entered its establishment through a door leading to the shipping room, instead of the one where customers were received, was at most a mere licensee, and the merchant is not liable for his death resulting from his fall in the shaft of a freight elevator.

2. EVIDENCE (§ 54) — PRESUMPTIONS — PRESUMPTION ON PRESUMPTION.

The presumption that persons killed by an accident were exercising due care is not a presumption of defendant's negligence, but of deceased's freedom from contributory negligence, and cannot be relied on to establish defendant's negligence; for a presumption cannot be piled on a presumption.

3. NEGLIGENCE (§ 32)—USE OF PREMISES— PRESUMPTIONS.

Where a customer was killed by falling into an elevator shaft on a merchant's premises, the presumption that the customer was not guilty of contributory negligence cannot be relied on to enlarge the merchant's invitation to include the room wherein the elevator shaft was located.

Appeal from St. Louis Circuit Court; W. M. Kinsey, Judge.

Action by Minnie Menteer against the V. Scalzo Fruit Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Emil Mayer and P. P. Taylor, for appellant. C. H. Krum and G. B. Sidener, for respondent.

BLAIR, C.

This is an appeal from an order overruling a motion to set aside a nonsuit in an action for damages for the death of Thomas Menteer.

The third amended petition stated that defendant was engaged in the wholesale fruit business in St. Louis, Mo., that it was defendant's duty to keep the premises it occupied in such condition as that the lives and limbs of its customers would not be endangered, and proceeds: "Plaintiff avers that defendant failed and neglected to keep said premises in such condition, and more particularly in this, to wit: That in said building there was at the time of the death of plaintiff's husband, and had been for a long time prior thereto, an elevator shaft running from the basement to the top floor of said building, and that in said shaft defendant used and operated an elevator; that the entrance to said shaft from the shipping room floor of said building was constructed in such a manner as to bear no resemblance to the usual entrance to such a shaft, but was so constructed as to deceive persons unfamiliar with the premises as to its true nature, and that the same might be readily mistaken by persons lawfully upon said premises and upon said shipping room floor for an entrance or passageway of some other nature; that there was no gate or other guard at said entrance and immediately around and inclosing said shaft, but that such gate or guard, when in place, was about six feet (6') distant from said shaft, and so constructed as to be misleading as to its nature and purposes and as to the nature and purposes of said entrance. Plaintiff further states that the approach to said shaft by way of said entrance was dimly and insufficiently lighted, and that said gate or guard was of such a nature or character that it could easily be opened or removed from said entrance, and was calculated to deceive persons as to the purpose for which it was intended and as to the place at which it was located; that on said shipping room floor and near said entrance the plaintiff maintained in said premises a room for the storage and sale of fruits, and that such room was at times visited by persons desiring to purchase fruits from the defendant, and that the entrance to such room—located near said entrance to said shaft—was of such a nature that persons not entirely familiar with said premises might easily and readily mistake one for the other; that said entrance or passageway from said shipping room floor to said shaft was maintained by defendant in a dimly and insufficiently lighted condition. Plaintiff further states that this unsafe condition of said premises existed for some time prior to September 14, 1904, and was well known to defendant, or by the exercise of ordinary care and diligence could have been known to it. Plaintiff further states that on the 14th day of September, 1904, and within six months next before the filing of the original petition in this cause of action, said Thomas Menteer was on the premises aforesaid as a customer of defendant, and that said defendant maintained said premises, and that portion thereof at and near said entrance or passageway and on said shipping room floor, as a place for the use and accommodation of its customers, and that said Thomas Menteer, while on said premises at and near said entrance or passageway and on said shipping room floor as a customer, where as such he had a right to be, and while in the exercise of ordinary care, entered said entrance or passageway leading to said shaft without knowing its true nature, and without any warning to him of the nature thereof, and by reason of the fact that said entrance or passageway was dimly and insufficiently lighted, as aforesaid, and by reason, also, of the fact that said shaft had been negligently and carelessly left in an open and unguarded condition, as hereinbefore described, said Menteer fell into said shaft, and sustained such injuries as to cause his death as a result thereof."

The facts were: That about 12 m., September 14, 1904, the body of Thomas Menteer was found at the bottom of an elevator shaft in the building occupied by defendant at 900 North Third street, in the city of St. Louis. The neck was broken, and there was a cut over one eye. No one was aware of Menteer's presence on the premises until the body was discovered. Menteer was a merchant, and conducted a store at Fredericktown, Mo. He was about 45 years of age, temperate in his habits, and was shown to have been sober at 10 a. m. on the day he met his death. For some time he had been a customer of defendant, usually ordering by mail, but had frequently visited defendant's establishment, and made purchases in person. The building occupied by defendant extended from Third street along Franklin avenue to Collins street. It faced Third street, and on its front were several large signs, giving the name and indicating the business of the occupant. This main entrance to the building, and the only entrance from the street to the sales department, was on Third street. The shipping department floor level was about six feet below that of the sales department, and the grade of Franklin avenue was such that there was an entrance from it into the shipping department, over the doors of which appeared the words "Shipping Department" in large gilt letters; the sign being 12 feet long and 18 inches wide. On Collins street, at the back of the building, was another entrance, a large double door, at which there was a platform from which fruits for shipment were loaded on wagons. Under the shipping department was a cellar or basement. Under the west or Third street part of the building was the "Banana room," the floor level of which was about 10 feet lower than that of the sales department, and about four feet lower than that of the shipping department; the latter and the main basement being beneath the east or Collins street part of the building. An elevator shaft, with openings on its east side into the basement and shipping room and on its west side into the banana room and sales department, ran from the basement to the top of the building. There were three floors above the sales department in the Third...