Paisley v. Liebowits

• Decision Date: 12 June 1961
• Docket Number: No. 47396,47396
• Citation: 347 S.W.2d 178
• Court: Missouri Supreme Court
• Parties: John William PAISLEY, a Minor, by his Next Friend, J. David Paisley, and J. David Paisley and Susan Paisley, Respondents, v. J. M. LIEBOWITS, d/b/a Liebowits Realty & Construction Co., Appellant.

Page 178

347 S.W.2d 178

John William PAISLEY, a Minor, by his Next Friend, J. David Paisley, and J. David Paisley and Susan Paisley, Respondents, v. J. M. LIEBOWITS, d/b/a Liebowits Realty & Construction Co., Appellant.

No. 47396.

Supreme Court of Missouri, En Banc.

June 12, 1961.

Bernard A. Barken, St. Louis, for appellant.

Rexford H. Caruthers, St. Louis, David L. Crossen, Clayton, Martin Schiff, Jr., St. Louis, for respondents.

LEEDY, Presiding Judge.

John William Paisley, an infant, has recovered judgment against J. M. Liebowits, d/b/a Liebowits Realty & Construction Company, for $7,500 for personal injuries (burns) allegedly resulting from defendant's negligence, which judgment also awarded the father, J. David Paisley, $3,121.60 for necessary medical and hospital expenses. Liebowits (hereinafter referred to as defendant) has appealed, contending that no submissible case was made, and, alternatively, that plaintiff's instruction No. 1 was reversibly erroneous.

The notice of appeal having been filed prior to January 1, 1960, appellate jurisdiction is in this court notwithstanding the fact that the 'amount in dispute' is below the (current minimum) limit of this court's monetary jurisdiction under Laws 1959, S.B. No. 7, V.A.M.S. Sec. 477.040.

Originally, there were several other defendants, but since the case has been disposed of as to them, and they are not involved in any of the questions presented on this appeal, they will not be further noticed.

Defendant is a building contractor who, on June 2, 1954, was engaged in constructing apartments on a vacant lot owned by him in the 5400 block on Cabanne Avenue in St. Louis. In the late afternoon of that day, the infant plaintiff, then 7 years old, came upon the premises and was playing around a trash fire, or the 'smolderings' or remains thereof, when, as the jury found, the combustible substance in a nearby can came in contact with the fire, and it ignited, and he was burned. Plaintiff's theory of recovery was that his injuries proximately resulted from defendant's negligence in keeping a dangerous substance (oleum spirits) on his premises where it was accessible to children of tender years, and likely to cause them harm or injury. Countering, defendant contends no case was made for the jury for these reasons: That plaintiff was a trespasser, or at most a bare licensee, to whom he owed no duty of affirmative care; that oleum spirits is not a dangerous substance within the doctrine of the cases imposing liability where dynamite caps and other extremely dangerous explosives were the offending substances; that there was no showing that oleum spirits was involved in the occurrence by any direct evidence or any legitimate inference; and that even assuming oleum spirits was on defendant's premises, there was no substantial evidence that this substance or any conduct on the part of defendant was the direct and proximate cause of plaintiff's injuries.

From photographs the apartment project (which was in an advanced stage of construction--defendant says 75 to 80% completed) appears to have consisted of a one-story structure built in the form of a 'U' with individual entrances opening onto a court in the fashion of a motel layout. It was in close proximity to the apartment house in which the Paisleys lived. From the time they had moved there (1941) until construction started, the lot (the only vacant one in the vicinity) had been used as a children's playground, a garden area and a picnic area for the people living in the neighborhood. After construction started, neighborhood children continued to play in and around the premises every day, especially after school, of which defendant had constructive, if not actual, knowledge.

Defendant likewise had actual or constructive knowledge that fires were started on the premises for the purpose of burning trash or waste materials created by the construction, which fires were permitted to 'burn out.' One witness testified there were remnants of such fires practically every evening when the workmen left. The defendant himself had seen small blackened and charred areas where fires had been on the premises. He had given no instructions as to burning trash or rubbish (whether to, or not to) for the reason, as testified by him, that the practice was to have accumulated trash carried off by truck. There was a 'Keep Out' sign located somewhat in the rear of the court, 103 feet back from the sidewalk, or 53 feet back from the front line of the building. Although children continued to play on the premises after construction started, the child had been warned by his parents to stay away. The painting contractor used a room in the new structure as a 'shop' where all the mixing of paint and cleaning or washing of brushes was confined. He testified oleum spirits was used each day (in the 15 minute interval before the painters left the premises for the day) to clean the brushes. It is a paint thinner, a clear liquid, and comes in 5-gallon square cans with a small screw lid or cap. There were different cans of it located in the building. Paint brushes were not cleaned in the original 5-gallon cans, but for this purpose the thinner was poured into an open top 5-gallon can, or into a smaller container. The painting contractor knew the substance was inflammable and would flare up if poured on a fire. He did not remember seeing a smoldering fire in the yard of the apartment building on the date in question, but stated he might have and not remembered it. He had frequently noticed that there was debris in front of the building, and he had previously seen fires there.

No one actually saw the occurrence, and the only direct evidence of it came into the record in the way indicated by these excerpts from the transcript:

'Mr. Caruthers: I am going to read a statement which was entered into by counsel as to what John William Paisley would testify to were he put on the stand here.

'Mr. Carter: It is understood it is not a stipulation of fact, but it is a statement that is what the boy's testimony is * * *.

'Mr. Caruthers: He would testify as follows [apparently reading from the transcript where Mr. Carter, defendant's counsel, had previously read said statement, or some of it]: 'He came home from school and found his mother wasn't there and went next door. And there was the remains of a fire, he believes there was some sand, where the fire had been, and he saw a can that had some liquid in it, that had sort of a greenish color. That he took a stick and stuck the end of the stick into the fire. He got some of the greenish liquid on his jeans. In the movement around there, he accidentally knocked over this can and some of that liquid spilled onto the place where the fire had been, or where there was still something hot and it started to flare up. He put a piece of tar paper * * *. [Mr. Carter: Then there was a discussion off of the record, and I said:] But Mr. Crossen has mentioned three points that I didn't incorporate in the statement of what the boy said. That when he moved and knocked over the can, he spilled some of it on the leg of his jeans, and also that he put tar paper over the fire to stamp it out, and that he did not specifically go into detail as to how much sand was on the fire, or whether there were any flames. Mr. Crossen also said at one stage of the game, when he first got some of the liquid on his pants, he decided to go upstairs and change his pants; that he kicked the can over when he was on his way upstairs.' Mr. Carter, I believe that has not been corrected.'

A neighbor heard plaintiff's 'terrible screams' shortly after he had left her premises, and she rushed from her apartment to assist him. When she reached the corner of the apartment she found 'there was a bright flame covering the lower part of his body, reaching almost to the waist, or right close to it * * * his blue jeans were in bright flames.' A passing deliveryman assisted this neighbor in removing the boy's clothing. He then went over to where the fire was and undertook to put it out. He picked up a gallon can that appeared to have water in it and threw it on the fire, and the fire blazed up 8, 10 or possibly 12 feet. He did not throw all of the liquid into the fire. The fire was some 30 to 50 feet from the sidewalk.

The child's father inspected the premises on the evening of the day in question, using a flashlight. He saw a charred area with 'junk and everything piled up around there, one place where the burning appeared to be.' Near that area he picked up a gallon can which was about one-eighth full of liquid. The can contained a thick green dark paint substance, and on top of that was floating about 2 or 3 inches of a liquid solvent that appeared to be paint thinner. It smelled like naphthalene or...