Nastasio v. Cinnamon, 45390

• Decision Date: 12 November 1956
• Docket Number: No. 45390,No. 1,45390,1
• Citation: 295 S.W.2d 117
• Parties: Angelina NASTASIO, Appellant, v. Barney CINNAMON, Molly Cinnamon, Philip Cinnamon, Jennie Cinnamon, Dave Gastman and Irma Gastman, Respondents
• Court: Missouri Supreme Court

Page 117

295 S.W.2d 117

Angelina NASTASIO, Appellant, v. Barney CINNAMON, Molly Cinnamon, Philip Cinnamon, Jennie

Cinnamon, Dave Gastman and Irma Gastman, Respondents.

No. 45390.

Supreme Court of Missouri, Division No. 1.

Nov. 12, 1956.

Ben W. Swofford, Robert A. Schroeder, John C. Milholland, Kansas City, Swofford, Schroeder & Shankland, Kansas City, of counsel, for appellant, Angelina Nastasio.

David R. Hardy, Lane D. Bauer, Sebree, Shook, Hardy & Ottman, Kansas City, A. J. Granoff, Kansas City, George V. Aylward, Kansas City, for respondents.

COIL, Commissioner.

Appellant Angelina Nastasio, plaintiff below, has appealed from a judgment dismissing plaintiff's first amended petition after the trial court had sustained defendants' motion to dismiss on the ground that the petition failed to state a claim upon which relief could be granted.

Plaintiff, as the widow of Don Nastasio, sought $15,000 damages for her husband's wrongful death. Her first amended petition averred: that defendants were the owners and operators of a 4-story building in Kansas City, in which were located retail business establishments on the first floor and apartments and rooms on the upper three floors in which many different families resided; that the hallways, stairways, and entrances were used in common by the tenants and their invitees and were under defendants' exclusive control; that on April 1, 1953, a fire occurred in the building in which the safety of many of the tenants was imperiled and in which other tenants were injured and died, and that such imperilment, injury, and death were the direct result of the negligence of defendants in the several particulars specifically averred in the petition; that defendants' agent telephoned a fire alarm to the Kansas City Fire Department which responded thereto, 'and that at the time of said alarm plaintiff's husband, Don Nastasio, deceased, responded to the scene of said fire as a volunteer and proceeded to go upon said premises for the primary purpose of saving life and limb of the tenants' who were in imminent peril as a direct result of the negligence of defendants, and that while engaged in rescuing such imminently imperiled persons the porches of said building were caused and permitted to collapse and fall upon plaintiff's husband directly causing his death; that such porches were and had been for a long time to the knowledge of defendants in a dangerous, unsafe and structurally weakened condition 'amounting to a trap for persons using them' and that defendants were wantonly and grossly negligent in causing and permitting such porches to remain and exist in such condition; that one of the defendants, present at the scene of the rescue operation, saw plaintiff's deceased husband under one of said porches but failed and refused to inform said deceased of the imminent danger of the porch's collapse and was thereby grossly and wantonly negligent.

It will be noted from the above summary of the amended petition that plaintiff averred that her husband as a result of the alarm responded to the scene of the fire as a 'volunteer.' Defendants' brief contains a statement to the effect that at the time plaintiff's deceased volunteered to rescue imminently imperiled tenants, he was an off-duty city fireman. Plaintiff correctly asserts that defendants in making that statement went 'outside the record.' Plaintiff, however, in her reply brief admits that the statement is true. Consequently, we shall consider the sufficiency of plaintiff's petition as though it included the substance of that statement. It would be useless and timeconsuming for us on this review to consider the petition as though the conceded fact as to plaintiff's deceased's status were not in the petition and as a result remand the case, when plaintiff agrees that the omitted fact is true, and when such omitted fact is, in our view, decisive of our disposition of the case. We therefore insert the omitted fact in brackets in the appropriate portion of the petition. So doing, the petition avers in part, 'defendants' resident manager personally telephoned the fire alarm call to the Kansas City, Missouri Fire Department which responded thereto; and that at the time of said alarm plaintiff's husband, Don Nastasio, deceased [who was a fireman employed by the Kansas City Fire Department and who was then off duty], responded to the scene of said fire as a volunteer and proceeded to go upon said premises for the primary purpose of saving life and limb of the tenants so imperiled * * *.'

In our recent case of Anderson v. Cinnamon, Mo., 282 S.W.2d 445, 446 (involving the same fire as the one here in question), it was held that a member of the Kansas City Fire Department, who entered premises to perform his duties as a fireman, had the status of a licensee; that "defendants' negligence in failing to repair said porch and put the same in a reasonably safe condition' cannot be a basis of liability to plaintiff'; and that 'where it is not alleged that the possessor of land was informed that firemen intended to enter and use the porch of his building with their fire-fighting equipment before they went on it, he cannot be held liable for failure to warn them to leave it after he knew of their presence there.' 282 S.W.2d 450.

It is plaintiff's contention that the instant amended petition stated a claim for relief under the 'rescue doctrine' and because of the fact that plaintiff's decedent was an invitee. Thus, plaintiff claims that Anderson v. Cinnamon, supra, does not control the question presented in the instant case because Anderson v. Cinnamon did not deal with a petition purporting to state a claim for relief under the 'rescue doctrine' or a claim for relief based upon a possessor's duty to an invitee. The same reasons, hereinafter stated, which cause us to hold that the amended petition fails to state a claim for relief under the 'rescue doctrine' cause us also to hold that plaintiff's deceased's status under the law of Anderson v. Cinnamon was that of licensee and not that of invitee.

The parties in their briefs disagree on the legal principles involved in, and the scope of, the so-called 'rescue doctrine.' It is plaintiff's contention that the doctrine encompasses the proposition that one who, absent wantonness, goes to the rescue of one imperiled by the negligence of another and is injured may recover against the other on the theory that the negligence toward the imperiled victim was likewise proximate negligence causing the injury to the rescuer. Defendants contend that the 'rescue doctrine' 'concerns itself entirely with the question of contributory negligence' and that in any event the 'rescue doctrine' cannot apply to the facts stated in plaintiff's amended petition because 'the alleged negligence of defendants which imperiled the tenants was not the proximate cause of plaintiff's decedent's death.' The view we take makes it unnecessary for us to precisely define the 'rescue doctrine,' although we may observe that we are not impressed by defendants' contentions as to its scope. For our purposes, we shall assume that plaintiff's contention as to the scope of the doctrine is correct. Therefore, it may be conceded that the same negligence which imperils a victim is also proximate negligence as to the nonwanton rescuer.

We are of the opinion, however, that plaintiff has failed to state a claim for relief under the 'rescue doctrine.' That conclusion for these reasons. We again note that, for our purposes, it is averred that plaintiff's decedent was an off-duty fireman, employed by the Kansas City Fire Department, who responded to a fire alarm. He is characterized in the petition as a 'voluntee...