Porchey v. Kelling

• Decision Date: 05 March 1945
• Docket Number: 39288
• Parties: Dean Porchey, by his Guardian, Otto Porchey, Appellant, v. Al E. Kelling, Doing Business as Al E. Kelling Service Station, and the National Refining Company, a Corporation
• Court: Missouri Supreme Court

185 S.W.2d 820

353 Mo. 1034

Dean Porchey, by his Guardian, Otto Porchey, Appellant, v. Al E. Kelling, Doing Business as Al E. Kelling Service Station, and the National Refining Company, a Corporation

No. 39288

Supreme Court of Missouri

March 5, 1945

Appeal from Circuit Court of St. Louis County; Hon. Raymond E LaDriere, Judge.

Affirmed.

Montague Punch for appellant.

(1) While the general rule, admittedly is, that the landowner or occupant owes no duty to trespassers or volunteers going upon his land, to maintain it in any particular condition for their benefit, yet that rule is relaxed and does not apply where the public generally has, for a long period of time been permitted, without objection, and with full knowledge of the owner or occupant, to use the same as a right-of-way. Under such a situation, it devolves on such owner or occupant to exercise reasonable care to keep the premises in a reasonably safe condition, and not negligently injure persons using such pathway, by knowingly maintaining a dangerous condition on such premises. The rule applied to railroads is applied generally to other cases. Schaaf v. Basket & Box Co., 151 Mo.App. 35, 160 Mo.App. 585; Henry v Disbrow Mining Co., 128 S.W. 841; Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 22; Gilliland v. Bondurant, 332 Mo. 881, 59 S.W.2d l.c. 688; Cates v. Evans, 142 S.W.2d l.c. 657; Ilgenfritz v. Mo. & Co., 340 Mo. 645, 105 S.W.2d l.c. 726; McKeighan v. Kline's, Inc., 339 Mo. 523; Wheeler v. St. Joseph Stock Yards, 66 Mo.App. 260; Dudley v. Love, 60 Mo.App. 420; Gillum v. Sisson, 53 Mo.App. 516; Myszkiew v. Filling Station, 178 A. 856; Cotner v. Ry. Co., 220 Mo. 284; Printz v. Reinbold, 202 N.W. 122; Morgan v. Ry. Co., 159 Mo. l.c. 279; Graves v. Thomas. 95 Ind. 361; Carskaddom v. Mills, 31 N.E. 559, 5 Ind. 22; Corby v. Hill, 4 C.B. (N.S.) 556; Duncan v. Ry. Co., 152 Mo.App. 284; LeMay v. Ry. Co., 105 Mo.App. 361; Bennett v. Ry. Co., 102 U.S. 577; Reynolds v. Ry. Co., 162 Mo.App. 618; 45 C.J., p. 821, sec. 231; 20 R.C.L., sec. 17, p. 56; 17 L.R.A. (N.S.), footnote, p. 920; 38 Am. Jur. (1941), 1 Thompson on Neg., sec. 977; Restatement of the Law, p. 984; Hufft v. Ry. Co., 222 Mo. 286. (2) It was the duty of the owner and the occupant of the filling station to give some form of warning of the presence at night of these greasing pits on the filling station grounds. Wheeler v. St. Joseph Stock Yards, 66 Mo.App. l.c. 266. (3) The general rule with respect to liability for using a foot path over property of another may be modified by special circumstances. Henry v. Disbrow Mining Co., 128 S.W. 841; Schaaf v. Basket & Box Co., 160 Mo.App. l.c. 43. (4) Where there has been a custom for persons to enter upon premises of another for certain purposes, with the acquiescence of the owner, an invitation will be implied. They have the status of invitees. Evans v. Sears-Roebuck, 104 S.W.2d 1035; Glaser v. Rothschild, 221 Mo. 180; Kemp v. Doe Run Lead Co., 57 S.W.2d l.c. 761; Gilliland v. Bondurant, 59 S.W.2d l.c. 688; 45 C.J., p. 810, sec. 220, p. 821, sec. 231; 20 R.C.L., sec. 17; 17 L.R.A. (N.S.), footnote, p. 920; 38 Am. Jur. (1941). (5) Where the owner or occupant, by his conduct or invitation, express or implied, has allured or induced a party to use a private way, in the belief it is open for the use of the public, the duty is thereby imposed on him of using reasonable care of maintaining same in a reasonably safe condition. Bennett v. Ry. Co., 102 U.S. 577, l.c. 579; Printz v. Reinbold, 202 N.W. 122 (Iowa). (6) "The word 'invitation', used in the rule, covers and includes in it enticement, allurement and inducement. The invitation may be implied by a dedication, or it may arise from known customary use (Drennan v. Grady, 167 Mass. 416, and cases, supra). So, too, it is held in all the cases that the invitation may be implied by any state of facts upon which it naturally and reasonably arises." Evans v. Sears-Roebuck, 104 S.W.2d 1035; Glaser v. Rothschild, 221 Mo. l.c. 186; Kemp v. Doe Run Lead Co., 57 S.W.2d l.c. 761; 45 C.J., p. 810, sec. 220, p. 821, sec. 231; Gilliland v. Bondurant, 89 S.W.2d 679; 20 R.C.L., sec. 17; 17 L.R.A. (N.S.) footnote, p. 920; 38 Am. Jur. (1941); Lepmic v. Graddis, 26 L.R.A. 686; Ahnefeld v. Ry. Co., 212 Mo. l.c. 305. (7) Both the person erecting or creating the condition or placing it in the possession or control of another, and the occupant maintaining the dangerous condition are responsible for damages resulting therefrom. Gordon v. Pelzer, 56 Mo.App. 599; Padberg v. Kennerly, 16 Mo.App. 556; Fellhauer v. St. Louis, 178 Mo. 646; Buesching v. Gas Co., 73 Mo. 219; Stevens v. Walpole, 76 Mo.App. 213; Merrill v. St. Louis, 83 Mo. 244; Henry v. Disbrow Min. Co., 128 S.W. 841; Benjamin v. Ry., 133 Mo. 274. (8) While denying that plaintiff was none other than an invitee under the allegations of the petition before the court, yet, even if one is a trespasser, this fact gives defendants no right to cause injury to him by dangerous or negligent methods. Cotner v. Ry. Co., 220 Mo. 284; Eppstein v. Ry. Co., 197 Mo. 720; Bell v. Eddy, 115 Mo. 596; Carter v. Ry., 98 Ind. 552; Ry. v. Savage, 110 Ind. 156; Ry. v. Kelly, 36 Kan. 655; Shea v. Ry. Co., 62 N.Y. 180; Rounds v. Ry. Co., 64 N.Y. 129; Biddle v. Ry., 112 Pa. St. 551; Lovett v. Ry., 9 Allen, 557. (9) Even where railroad company had signboards warning people on its tracks and right-of-way of danger, but the warning had never been obeyed for a greater number of years, plaintiff while walking on its tracks was not a trespasser. Murrell v. Ry. Co., 105 Mo.App. 88. (10) Plaintiff's knowledge of the presence of the pits would be no defense, except to bear on the question of contributory negligence, and will not as a matter of law defeat a recovery. Brill v. Eddy, 115 Mo. 596; Mouse v. City of Springfield, 101 Mo. 618. (11) The law presumes that one was in the exercise of ordinary care; and this presumption is not overthrown by the mere fact of injury. Buesching v. St. Louis Gas Light Co., 73 Mo. l.c. 238; Parsons v. Railway Co., 94 Mo. l.c. 293; Petty v. Railway Co., 88 Mo. l.c. 320.

John F. Evans for respondent The National Refining Company; Eugene L. Rush and Douglas H. Jones for respondent Al E. Kelling.

(1) The petition alleged facts showing that plaintiff entered defendants' filling station at the nighttime as a trespasser (or at most as an invitee or licensee for his own convenience) and not on any business or benefit accruing to defendant whatsoever. A licensee takes premises in the condition in which he finds them, regardless of permission or invitation. 1 Mo. University Law Review, Book 1; Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1; Davis v. Ringolsky, 143 Mo.App. 364, 127 S.W. 625. (2) Tacit permission to cross defendants' property does not create the status of a business invitee, and plaintiff cannot recover because of a previous condition existing on defendants' property. He takes the premises as he finds them. Ford v. Rock Hill Quarries Co., 341 Mo. 1064, 111 S.W.2d 173; Stevenson v. Kansas City So. Railway, 348 Mo. 1216, 159 S.W.2d 260; Cameron v. Small, 182 S.W.2d 565. (3) Plaintiff cannot recover on the theory that he was a business visitor, as there is no claim of any benefit accruing to defendants from plaintiff's use of their premises as a short-cut for his own convenience. Wyatt v. Kansas City Terminal Co., 229 Mo.App. 179, 74 S.W.2d 51; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278; Blavatt v. Union Electric L. & P. Co., 335 Mo. 151, 71 S.W.2d 736; Stevenson v. Kansas City So. Ry. Co., 348 Mo. 1216, 159 S.W.2d 260; Horvath v. Chestnut Street Realty Co., 144 S.W.2d 165; Connole v. Floyd Food Co., 96 S.W.2d 655; Overholt v. Vieths, 93 Mo. 422, 6 S.W. 74; Eisenberg v. Mo. Pac. Ry. Co., 33 Mo.App. 85; Barry v. Calvary Cemetery Assn., 106 Mo.App. 358, 80 S.W. 709; Roe v. St. Louis Independent Packing Co., 203 Mo.App. 11, 217 S.W. 335; Boneau v. Swift & Co., 66 S.W.2d 172; Straub v. Soderer, 53 Mo. 38. (4) Plaintiff-appellant's cases are not in point. Plaintiff was not an employe of defendants. Defendants did not actually injure plaintiff. Possessors of land are only liable to licensees or trespassers where they are guilty of acts of misfeasance toward such trespasser, when they knew or should have known that their active negligence would cause injury to one on their property due to negligent operation. Plaintiff cannot recover for dangerous conditions on defendants' lands which he enters for his own purpose and pleasure. Schaff v. Basket & Box Co., 151 Mo.App. 35, 131 S.W. 936; Henry v. Disbrow Mining Co., 128 S.W. 841; Cates v. Evans, 142 S.W.2d 654; L.R.A. 1918, p. 849; 26 L.R.A., p. 69. (5) Cases cited by plaintiff holding owners of premises liable for defects relate only to business houses and customers where plaintiff has been invited to use a particular part of defendants' premises for defendants' business. Even under such conditions defendants are not liable for ordinary conditions created for the particular purpose of a particular business. Under these authorities, plaintiff could not even recover for the negligence alleged in his petition for falling into an open grease pit even though he were a business customer. Such conditions are usual and customary to such business. Ilgenfritz v. Mo. P. & L. Co., 340 Mo. 648, 101 S.W.2d 723; McKeighan v. Klines, Inc., 339 Mo. 523, 98 S.W.2d 555; Evans v. Sears-Roebuck, 104 S.W.2d 1035; Gilliland v. Bondurant, 332 Mo. 881, 59 S.W.2d 679.

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

OPINION

BOHLING

Cast on demurrer to his third amended petition nisi, plaintiff appeals. Otto Porchey instituted the action as guardian of Dean Porchey, a person of unsound mind (for convenience referred to as plaintiff), against Al E. Kelling and The National Refining...