Paubel v. Hitz

• Citation: 96 S.W.2d 369,339 Mo. 274
• Parties: Edward M. Paubel v. Earl Hitz, Doing Business as Emil Hitz Commission Company, Appellant
• Decision Date: 20 August 1936
• Court: United States State Supreme Court of Missouri

96 S.W.2d 369

339 Mo. 274

Edward M. Paubel v. Earl Hitz, Doing Business as Emil Hitz Commission Company, Appellant

Supreme Court of Missouri

August 20, 1936

Appeal from Circuit Court of City of St. Louis; Hon. Clyde C Beck, Judge.

Reversed.

Jones Hocker, Gladney & Jones, Web A. Welker and Arnot L Sheppard for appellant.

The trial court erred in refusing to sustain appellant's demurrer at the close of all of the evidence. Respondent was a United States postman. When, upon his official duty as a postman, he went upon the premises occupied by appellant, he became an invitee. Gordon v. Cummings, 152 Mass. 513, 25 N.E. 978; Sutton v. Penn, 238 Ill.App. 182. Respondent's own evidence discloses that he had full and complete notice and knowledge of the condition of the runway prior to his fall. His knowledge of its condition, whether it was safe or unsafe, was equal, and in no way inferior, to appellant's knowledge of its condition. Therefore, he cannot recover, as knowledge on the part of the owner or occupier of premises, superior to that of the invitee, is essential to create liability on the part of the former to the latter. Burnison v. Souders, 35 S.W.2d 622, 225 Mo.App. 1163; Vogt v. Wurmb, 300 S.W. 279, 318 Mo. 475; Cash v. Sonken-Galamba Co., 17 S.W.2d 929, 322 Mo. 355; Mullen v. Sensenbrenner Merc. Co., 260 S.W. 982; Main v. Lehman, 294 Mo. 579; Stein v. Oil & Grease Co., 327 Mo. 817; Goetz v. Hydraulic Press Brick Co., 320 Mo. 593; Bennett v. Railroad Co., 102 U.S. 577.

Berthold & Chase and Don O. Russell for respondent.

Plaintiff was not guilty of contributory negligence as a matter of law. Scott v. Kline's, 284 S.W. 831; Hollis v. Kansas City Mo. Retail Merchants' Assn., 103 S.W. 36; Crawford v. K. C. Stockyards Co., 114 S.W. 1057; Evanston v. Gunn, 99 U.S. 660; Oakley v. Richards, 204 S.W. 506; Geninazza v. Leonori Auction & Storage Co., 252 S.W. 419. Plaintiff was an employee of the United States Government as a mail carrier. Appellant used the United States mail in sending and receiving messages. Plaintiff was therefore an employee of the the third person rendering services to the defendant, appellant, on appellant's premises and, therefore, should be considered as an employee on the premises of the defendant at defendant's request and the law as in master and servant cases should be applicable to the respondent herein, and the question of contributory negligence should be construed on the basis of master and servant, and the defect which caused plaintiff's fall was not open, glaring and obvious, and immediate danger from using the runway was not apparent to respondent and, therefore, he was not guilty of contributory negligence as a matter of law. Cummings v. Union Quarry & Construction Co., 87 S.W.2d 1042; Jewell v. Kansas City Bolt & Nut Co., 132 S.W. 703; Clark v. Union Iron & Foundry Co., 137 S.W. 577; Clark v. Railroad Co., 137 S.W. 583; Edmondson v. Hotel Statler Co., 267 S.W. 612. The mere fact that plaintiff fell, not being evidence of negligence on the part of the defendant, there is no reason why the fact that plaintiff did fall should be evidence that he was contributorily negligent as a matter of law. Glaser v. Rothschild, 120 S.W. 9. Appellant did not request the court to declare plaintiff guilty of contributory negligence as a matter of law, but submitted his case on the same theory as did plaintiff and is estopped from asserting that that issue was not in the case. Wielms v. St. Louis County Gas Co., 37 S.W.2d 457; Cazzell v. Schofield, 8 S.W.2d 588; Anderson v. Davis, 284 S.W. 453; Dell v. Schaeffer Construction Co., 29 S.W.2d 79.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

Defendant appeals from a judgment for $ 22,500 awarded plaintiff for injuries sustained by a fall.

Defendant Earl Hitz, was engaged in the commission business under the name of Emil Hitz Commission Company, handling live turkeys, geese, chickens, ducks, eggs, veal, hides and once in a while a few lambs, within what was known as "Commission Row district," St. Louis, Missouri. The only means of ingress and egress from the sidewalk to defendant's place of business was a permanent runway, about five feet wide, fifty-eight inches long and nine and one-half inches higher at the doorway (with which it was flush) than at the sidewalk line. Defendant used this runway to hand truck the poultry and other farm products purchased and sold into and out of his place of business whenever he needed to truck the same; and "manure and chicken dirt" and other substances would drop onto the runway. This required the cleaning of the runway quite frequently during the daytime, and the use of sawdust or ashes to make it easy to walk on and keep from slipping. At times it was necessary to use a scraper in cleaning the runway.

Plaintiff, Edward M. Paubel, testified that he was forty-eight years of age, earning $ 175 a month as a United States postman at the time of the accident, and had covered "Commission Row district" since August, 1916 or 1917; that he was familiar with all the entrances along and on both sides of the street; that practically all of the commission companies had the same kind of a runway as defendant and used it for the same purpose as defendant; that he had been delivering mail in the block where defendant's place of business was located for about a year prior to the accident and was making five trips a day to defendant's address; that there was always something on defendant's runway; that on the Saturday before the accident defendant's runway was "wet, slushy, full of dirt, chicken dirt;" that the accident occurred about seven fifty A. M. on his first trip on Monday, February 3, 1930; that he was wearing a pair of Dr. Sawyer's high shoes, practically new, with rubber heels with a slip knot; that there was some snow and slush (wet and slushy) on the ground, which was tracked in and out of defendant's place on the runway; that it would melt during the day and freeze up at night; that it had not rained that day; that he noticed the condition of the runway when he went in and when he went out; that he had the mail pouch over his left shoulder, a bundle of papers in his left arm and a bundle of loose letters in his left hand; that he walked up the runway to deliver the mail -- "I took great care in doing so, as I saw that it was slippery and wet and full of manure and chicken dirt. After I had delivered the mail I started out of the door. My first step, my both feet slipped from under me" --; and that there was slush, chicken dirt, manure and other substances on the runway at the time he fell.

Defendant contends his demurrer to the evidence should have been sustained; as the evidence discloses plaintiff had full notice and knowledge of the condition of the runway, in no way inferior to defendant's knowledge of its condition, and, as superior knowledge on the part of the possessor is essential to create liability to an invitee, plaintiff may not recover.

The old common law conception of a landlord's sovereignty and immunity for acts done within the boundaries of his land has been gradually encroached upon by the principles of the modern law of negligence; but in the application of tort principles to cases involving injuries suffered by parties on account of the condition of the premises of others, the courts have not gone to the extent of making it undesirable to possess land or obliterating the distinctions between private and public property or property devoted to a public use.

The status of plaintiff on defendant's premises was that of a business invitee, visitor or guest. The cases of Gordon v. Cummings, 152 Mass. 513, 515, and Sutton v. Penn, 238 Ill.App. 182, 185, hold a United States postman, engaged in the performance of his duties, enters the premises of those he serves upon the express or implied invitation so to do. [See also 45 C. J. 817, sec. 226, n. 2, as to government employees on premises of others in the performance of their duties.] Plaintiff's presence was not solely for plaintiff's benefit but for the mutual benefit of defendant (to and from whom plaintiff delivered and received mail) and plaintiff.

In Vogt v. Wurmb, 318 Mo. 471, 475, 300 S.W. 278, 279 plaintiff, a business invitee entered defendant's retail store via concrete steps, recently painted, with a board on each step to protect the paint. The steps looked safe to plaintiff. On leaving the store one of the boards went out from under plaintiff causing her to fall and become injured. In ruling defendant possessor's demurrer was properly sustained the court considered the condition of the steps not inherently dangerous; that whatever danger existed was obvious; that there was no lurking peril, or any hidden or concealed physical situation; and that all the information the possessors had concerning the condition of the steps and the care required to use them with safety had been disclosed to plaintiff. The court (citing cases) recognized the rule announced in Carleton v. Franconia I. & S. Co., 99 Mass. 216, 217, and stated in Bennett v. Louisville & N. Railroad Co., 102 U.S. 577, 580, 26 L.Ed. 235, 236 as follows: ". . . the owner or occupant of land who, by invitation, express or implied, induces or leads others to come upon his premises, for any lawful purpose, is liable in damages to such persons -- they using due care -- for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them, and was negligently suffered to exist, without timely notice to the public, or to those who were likely to act upon such invitation;" and quoted 20 Ruling Case Law, 56, section 52, in part, as follows: ". . . The true ground of liability is the proprietor's superior...