Morelock v. De Graw

• Citation: 112 S.W.2d 126,234 Mo.App. 303
• Parties: LAURA MORELOCK, RESPONDENT, v. R. X. DeGRAW, APPELLANT
• Decision Date: 06 December 1937
• Court: Court of Appeals of Kansas

112 S.W.2d 126

234 Mo.App. 303

LAURA MORELOCK, RESPONDENT, v. R. X. DeGRAW, APPELLANT

Court of Appeals of Missouri, Kansas City

December 6, 1937

Appeal from the Circuit Court of Linn County.--Hon. Paul Van Osdol Judge.

AFFIRMED.

Judgment affirmed.

Owen & Thurlo for appellant.

(1) The trial court committed error in overruling defendant's demurrer to plaintiff's petition, because said petition did not state sufficient facts to constitute a cause of action. 36 C. J., p. 43; Beane v. City of St Joseph, 201 Mo.App. 262, 211 S.W. 85; Eyer v Jordan, 111 Mo. 429, 19 S.W. 1095; Fehlhauer v. City of St. Louis, 178 Mo. 635, 77 S.W. 483; Mayer v. Schrumpf, 111 Mo.App. 54, 85 S.W. 915, 10 L.R.A. 147; Clark v. Chase Hotel, 74 S.W.2d 498; Paubel v. Hitz, 96 S.W.2d 639; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 287. (2) The trial court erred in refusing to give defendant's Instruction "C" for the reason that defendant is not liable for the acts of third parties not in his employment and over whom he had no control. Eyer v. Jordan, 111 Mo. 429, 19 S.W. 1095; Fehlhauer v. City of St. Louis, 178 Mo.App. 35, 77 S.W. 843; Taylor v. Bailey, 74 Ill. 178; Ryan v. Wilson, 87 N.Y. 741; Mayer v. Schrumpf, 111 Mo.App. 54, 85 S.W. 815. (3) The trial court committed error in refusing to give defendant's Instruction "B," being an instruction in the nature of a demurrer to the evidence as plaintiff had neither pleaded nor proven a cause of action. Rice v. White, 239 S.W. 141.

H. K. West and Walter Hotaling for respondent.

(1) The court did not err in overruling defendant's demurrer to the petition. 36 C. J. 213, 225; Savona v. May Stores Co., 71 S.W.2d 156; Campbell v. Chillicothe, 239 Mo. 455; Scott v. Klines, 234 S.W. 831; Neilson v. Missoula Creamery Co. (Mont.), 196 P. 357; Allen v. Linquist (D. C.), 43 App. Cas. 538; Fehlhauer v. City of St. Louis, 178 Mo. 646; Camp v. Wood, 76 N.Y. 92. (2) The trial court did not err in refusing to give defendant's Instruction C. 36 C. J. 213, 225; Savona v. May Stores Co., 71 S.W.2d 156; Campbell v. Chillicothe, 239 Mo. 455; Scott v. Klines, 234 S.W. 831; Neilson v. Missoula Creamery Co. (Mont.), 196 P. 357; Allen v. Linquist (D. C.), 43 App. Cas. 538; Fehlhauer v. City of St. Louis, 178 Mo. 646; Camp v. Wood, 76 N.Y. 92; Thornton v. Union Electric Light & Power Co., 33 S.W.2d 161, l. c. 163. (3) The court committed no error in refusing to give defendant's Instruction B. 36 C. J. 213, 225; Savona v. May Stores Co., 71 S.W.2d 156; Campbell v. Chillicothe, 239 Mo. 455; Scott v. Klines, 234 S.W. 831; Neilson v. Missoula Creamery Co. (Mont.), 196 P. 357; Allen v. Linquist (D. C.), 43 App. Cas. 538; Fehlhauer v. City of St. Louis, 178 Mo. 646; Camp v. Wood, 76 N.Y. 92; Thornton v. Union Electric Light & Power Co., 33 S.W.2d 161, l. c. 163.

OPINION

REYNOLDS, J.

The defendant appeals from a judgment of $ 500 rendered against him in favor of the plaintiff in the Circuit Court of Linn County in an action by the plaintiff against him for personal injuries sustained by her as the result of striking her head against a heavy, steel, vault door swinging over a stairway in a building owned by the defendant in the city of Brookfield, Missouri, while she was ascending the stairway for the purpose of visiting a law office on the second floor of said building, which stairway and vault door were alleged to have been negligently constructed and maintained by the defendant, so as to create an unsafe condition when in use on the stairway.

The theory of the plaintiff as to her right of recovery against the defendant and the grounds therefor fully appear from her petition, which is as follows:

"Plaintiff, for cause of action, states that she and the defendant are both residents of Linn County, Missouri. Plaintiff states that the defendant is the owner of a certain brick building situate at the northeast corner of the intersection of North Main Street with East Brooks Street in the city of Brookfield, Linn County, Missouri. That the first floor was occupied by George Walkup for the purpose of operating a drug store and by John Carlon, insurance agent. That the second floor was occupied by T. P. Burns, Lawyer; C. V. Sidner, Dentist, and Lon R. Owen, Lawyer. That in the office of L. R. Owen, Lawyer, was located certain persons engaged in the handling of the receivership of the First National Bank of Brookfield which formerly occupied the lower floor of the building where the drug store subsequently became located. That said building is approximately twenty-five (25) feet in width and along the north side of the upper floor of said building leading from front to back is a hallway approximately six (6) feet in width through which and over which the public is required to pass as invitees or licensees in visiting the office of T. P. Burns, L. R. Owen and C. V. Sidner. That the entrance to the upper floor of the building is on the south side of said building and opens off of East Brooks Street at a point of about fifteen (15) feet from the rear of said building. That persons entering said building to go from the ground floor to the second floor pass up a stairway which stairway runs from the first floor to the second floor in an approximately northerly and southerly direction. That the lower portion of said stairway is open on the east or on the right side of the person going upstairs except for a rail or banister. That the left hand side or west side of said stairway is flush with the wall and that in said wall along said stairway is a huge, heavy, bulky safe or vault door. And that some of the fixtures on said vault door protrude so as to offer an obstruction to persons traveling on said stairway. That when said vault door is open or partially open it swings across said stairway offering a dangerous obstruction and impediment to persons using said stairway.

"That said stairway is under the dominion and control of the defendant and is not leased to any person or persons but that the person or persons occupying said building occupy only office rooms and store rooms therein. That said building and stairway and vault or safe door were negligently and carelessly constructed, all with the knowledge of this defendant in the manner above specified. That is, so constructed that the defendant knew or with the exercise of ordinary care could have known that if and when said vault door was left open or partially open that persons using said stairway was likely to collide with said door or portion of said door and become hurt and injured.

"Plaintiff states that on about September 7th, 1935, while entering said building as an invitee or licensee and undertaking to go from the first to the second floor of said building, using said stairway and while exercising ordinary care on her part, she ran into and collided with said heavy vault door which was at the time left open or partially open, injuring herself. That she violently struck her head against said door which said blow and collision resulted in the following personal injuries, to-wit: . . ."

Here follow a detailed statement of her injuries and the nature and extent thereof and a statement that they are permanent, followed by the prayer of the petition, which it is unnecessary to set out at this point.

To the plaintiff's petition, the defendant filed a demurrer, alleging as grounds therefor that the petition failed to state facts sufficient to constitute a cause of action against him. Upon this demurrer being overruled by the court, he filed an answer admitting that he owned the building in question; that a stairway existed for the use of tenants occupying upper rooms in said building; that, on the west side of the stairway, there was a vault constructed by a former bank tenant on the lower floor, with a door flush with the wall opening therein from the stairway, which opened out into the stairway and which, when fully opened, rested against the wall in the stairway. The answer denies that such vault was under the dominion and control of the defendant but alleges that it was under the sole and exclusive dominion and control of tenants in the building. It further makes general denial and incorporates a plea of contributory negligence upon the part of the plaintiff.

The cause was tried before the court and a jury on June 23, 1936, at the June, 1936, term of the court.

The evidence tends to show the following state of facts:

The defendant was the owner of a two story business building in the city of Brookfield, Missouri, which was at the time of the plaintiff's injury let to various tenants. The lower floor was let to an insurance agency and to the proprietors of a drug store. The upper floor was cut into office rooms which were let by the defendant to certain occupants thereof. The upper floor and the offices thereon were reached by a stairway at the east end of the building, from the street on the south side of the building. The building faced on Main Street. This stairway proceeded north to a landing and turned west, connecting with a hallway leading to the various rooms on the second floor occupied as offices. Certain of these office rooms were occupied by a dentist, Dr. Sidner; others by Lon R. Owen, a lawyer; and still others by T. P. Burns, a lawyer. Just as the landing is approached on the stairway, on the left thereof, a large vault opened through the left wall with a heavy, steel door about two and one-half to three feet in width and about five feet in height, which, when closed was flush with the wall but from which projected a knob or handle extending outward a distance of about one to one and one-half inches. The door opened to the south over the stairway. When opened, it could be rested against the wall and flush therewith, except for its thickness and the knob thereon. ...