Penberthy v. Penberthy
| Decision Date | 18 December 1973 |
| Docket Number | No. 34793,34793 |
| Parties | Paul D. PENBERTHY, Plaintiff-Respondent, v. Charles PENBERTHY, Defendant-Appellant. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Dearing, Richeson, Roberts & Wegmann, Hillsboro, for defendant-appellant.
Roberts & Roberts, Farmington, for plaintiff-respondent.
This is an appeal from a judgment of the Circuit Court of Jefferson County rendered on a jury verdict in favor of plaintiff and against his brother, the defendant, in the sum of $17,000.00 for personal injuries and special damages. The parties shall hereinafter be referred to as they were in the trial court, i.e., Paul D. Penberthy as 'plaintiff' and Charles Penberthy as 'defendant.'
The facts are not in dispute; it is the legal principles involved which form the basis of this appeal.
On December 27, 1970, plaintiff, his wife and Michael Penberthy, brother of both the plaintiff and the defendant (and who shall hereinafter be referred to as 'Michael') drove to defendant's farm on Lee Pyle Road in the vicinity of DeSoto, Missouri. They arrived at the farm sometime shortly prior to noontime. After partaking of lunch, defendant advised both plaintiff and Michael that he was going out to cut some brush at a lake he was developing on his farm. It was the custom of these brothers, whenever they visited each other, that they would assist their host in any chores he might be undertaking while they were present. Plaintiff and Michael volunteered to help the defendant in this work and he accepted their offer. The work he was going to perform was the removal of some limbs on a tree which was standing in a brush pile where the proposed lake was to be situated so that said limbs would not extend above the waterline of the lake. After gathering the necessary tools, the three brothers went to the location of the proposed lake and plaintiff and defendant proceeded to climb to the top of the brush pile--the top of which was 10 to 15 feet above the surface of the ground--and Michael remained on terra firma. Defendant had with him a chain saw with which he intended to saw the limbs off of the tree. Plaintiff would hold the tree limbs as defendant sawed through them with the chain saw, and when the limb was severed from the tree he would lower the limb to Michael who would in turn put it around the brush pile on the ground surface. Several limbs were sawed from the tree--'three or four'--by the defendant with the assistance of the plaintiff and throughout that time both parties were standing on the brush pile and enjoyed 'sound footing,' and neither had experienced any difficulty maintaining his balance. While plaintiff was looking around for more limbs to cut, defendant, with both hands holding the chain-saw, commenced sawing another limb from the tree. At this time defendant's back was to the plaintiff so that plaintiff could not observe the progress of the chain-saw through the limb because defendant's body blocked his view. The chain-saw cut through the tree limb more rapidly than defendant expected, causing him to lose his balance and start falling forward. Defendant, in his effort to avoid falling forward off the brush pile, went backwards, lost his balance in that direction, fell against plaintiff and both plaintiff and defendant fell from the top of the brush pile to the ground below. It all happened so quickly that defendant could not warn plaintiff. As a result of the fall from the brush pile plaintiff sustained a surgical fracture of the neck of the left femur.
Plaintiff submitted his case to the jury in Instruction No. 4 on the theory that the defendant was negligent in that he 'did fail to secure his position.' Defendant submitted his theory of contributory negligence in Instruction No. 7, which told the jury that whether or not defendant was negligent it should return a verdict for defendant if 'Plaintiff knew or by using ordinary care for his own safety could have known that defendant in cutting branches with the chain-saw could lose his balance and fall against him and knock him from the brush pile,' and plaintiff 'failed to use ordinary care to secure himself on the brush pile so that he would not be knocked therefrom or failed to keep a lookout in regard to the cutting operation.' (Emphasis supplied).
Defendant contends that the trial court was guilty of the following trial errors which require that the judgment be reversed outright or the cause remanded to the trial court with instructions to sustain the defendant's motions for directed verdict at the close of the plaintiff's case and at the close of all of the evidence because the plaintiff failed to make a submissible case; or, if this Court finds that the plaintiff did make a submissible case, then the judgment should be reversed and the cause remanded for a new trial because of error in the plaintiff's verdict director, Instruction No. 4, and error in failing to sustain objections to statements made by plaintiff's counsel during his final summation to the jury.
Point I of defendant's contentions is that the evidence and reasonable inferences to be derived therefrom failed to prove (a) that the defendant, in conducting his activities on his premises, had knowledge of an unreasonable harm to plaintiff of which plaintiff did not or could not know; (b) that plaintiff was unaware of the risk of harm or that plaintiff lacked knowledge of the danger in the conduct by defendant of his activities; and (c) that the negligence, if any, was the proximate cause of plaintiff's injuries.
The thrust of defendant's argument in support of subpoints (a) and (b) is that plaintiff was at best a 'gratuitous licensee' on the premises of the defendant and therefore the only duty the defendant owed him was to carry on his activities with reasonable care for plaintiff's safety. That an essential element of plaintiff's claim is the knowledge of defendant that his activities involve a 'risk of harm' to plaintiff and that defendant has a 'superior knowledge' of an unreasonable risk of harm to plaintiff involved in the activities conducted on his premises.
While the Missouri law recognizes a distinction between invitees, licensees and trespassers with respect to the duty owed them by the landowner, the significance of status largely disappears once the presence of the visitor becomes known and a uniform duty, that of reasonable care, is owed to each as to the activities conducted on the premises. Cunningham v. Hayes, 463 S.W.2d 555, 559(3) (Mo.App.1971). In any event, an owner-occupier is liable to either a licenses or an invitee for active negligence, i.e., negligence in connection with activities conducted on the premises. Cupp v. Montgomery, 408 S.W.2d 353, 356(2) (Mo.App.1966).
In determining whether a submissible case was made, the evidence must be viewed in the light most favorable to the plaintiff, who is entitled to all favorable inferences which might properly be drawn from the evidence by the jury. Zipp v. Gasens Drug Store, Inc., 449 S.W.2d 612, 616 (Mo.1970). The only evidence in this case came in during plaintiff's case. The defendant offered none but chose to stand on his motions for directed verdict, because the defendant was called and testified during the plaintiff's case.
The evidence is uncontradicted that the plaintiff was as aware of the nature of the brush pile on which both he and defendant were working as was the defendant. They both had 'solid footing' and neither had taken any steps to secure himself on the brush pile although plaintiff had obtained some security by holding onto the limbs as defendant sawed them from the tree trunk. However, as the defendant sawed through the final limb his body concealed from the plaintiff the manner in which he handled the cahin-saw, and there is no evidence whatsoever that the plaintiff saw or could have seen whether defendant had secured his position. Defendant knew that he had not, for he held onto the chain-saw with both hands as he sawed through the limb. In this respect defendant had superior knowledge that he had not secured his position on the brush pile as he proceeded to cut down through the tree limb. By his own testimony, it was his sawing through the limb with the chain-saw while still putting weight on the chain-saw and the limb and not taking precautions to see to it that he did not cut through the tree limb so that the force of gravity would pull him forward and cause him to lose his balance, which the jury, as reasonable men, could find was a violation of the duty of reasonable care owed the plaintiff. Plaintiff was not required to foresee defendant's negligence; he had a right to expect that the defendant would conduct the limb-cutting operation with ordinary care for the plaintiff's safety. Williamson v. St. Louis Public Service Co., 363 Mo. 508, 252 S.W.2d 295, 299 (1952).
We conclude that the plaintiff made a submissible case.
Defendant also contends that his failure to secure his position was not established as the proximate cause of plaintiff's injuries. Again he contends that the plaintiff failed to prove how defendant could have secured himself, or even if he had, how that would have prevented the injury plaintiff sustained. He inquires: 'Would the 'security' have prevented the saw from going through the limb too fast? ' Secure means, 'to return from exposure to danger, to make safe,' Webster's Third New International Dictionary, 1971. We have held above that the jury could have found from the evidence that the defendant could have secured his position. 'Proximate cause' is any cause which in natural and continuous sequence, unbroken by any intervening cause, produces the result complained of and without which the result would not have occurred. King v. Ellis, 359 S.W.2d 685, 688(2) (Mo.1962); Coates v....
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