Richey v. Kemper
Decision Date | 12 July 1965 |
Docket Number | No. 51027,No. 2,51027,2 |
Citation | 392 S.W.2d 266 |
Parties | David RICHEY, by his mother and next friend, Barbara Richey, Appellant, v. Lucian KEMPER, Respondent |
Court | Missouri Supreme Court |
Walter F. Moudy, Kansas City, for appellant.
Hale Houts, Thad C. McCanse, Houts, James, McCanse & Larison, Kansas City, for respondent.
STOCKARD, Commissioner.
Plaintiff has appealed from the judgment of the trial court dismissing his petition for failure to state a claim upon which relief may be granted. The prayer was for damages in the amount of $25,000, and this court has appellate jurisdiction.
Plaintiff alleged that defendant subdivided land owned by him into city lots which he sold, but that he retained a 'house and large lot next to and adjacent to' the subdivision; that defendant 'actively encouraged and expressly invited small children living next to his retained premises to use his aforesaid large lot as a playground and ball field;' that defendant 'caused and permitted trash, junk, and logs to lay around on portions of said lot, and permitted weeds, uncut grass, and other vegetable growth to grow up around this trash, junk, and logs so that they were concealed and difficult to see and presented a hazard to small boys who might be playing and running on defendant's premises;' and that when plaintiff, then twelve years of age, was playing on defendant's lot and running through a portion where weeds, grass and other vegetable growth concealed the trash, junk and logs, he jumped over a log and 'tripped and fell over an old tin can or bucket which was concealed in said weeds and uncut grass and other vegetable growth' and was caused to fall and break his arm and sustain the injuries for which damages were sought. Plaintiff further alleged that defendant was negligent in 'expressly inviting and encouraging small boys and this plaintiff to use his retained premises as a playground when he knew or should have known that the presence of weeds, uncut grass, and other vegetable growth would conceal the presence of trash, junk, and logs, and when he knew or should have known that it was dangerous for small boys to run and play on said premises and that it was likely that small boys would be injured by the presence of concealed junk, trash, and logs on said premises.'
Missouri decisions classify persons who enter upon land in the possession of another as trespassers, licensees, and invitees. Porchey v. Kelling, 353 Mo. 1034, 185 S.W.2d 820, 823; McVicar v. W. R. Arthur & Company, Mo., 312 S.W.2d 805, 65 A.L.R.2d 785; Boyer v. Guidicy Marble, Terrazzo & Tile Co., Mo., 246 S.W.2d 742. Plaintiff was not a trespasser because he was on the land at the invitation and with the consent of the possessor. Neither was he an invitee, sometimes called a business guest. Twine v. Norris Grain Co., Mo.App., 226 S.W.2d 415, quoting from Stevenson v. Kansas City Southern Ry. Co., 348 Mo. 1216, 159 S.W.2d 260, 263. Plaintiff does not allege facts from which it could be found that the purpose of his entry upon the land of defendant was of real benefit or interest to defendant, and there is no argument advanced that he should be treated as an invitee in the accepted legal classification under the existing rules in this state.
Plaintiff inferentially admits that he was a licensee because he entered the premises for his own purpose with the express consent of the possessor. McVicar v. W. R. Arthur & Company, supra; Twine v. Norris Grain Co., supra. In such situation the possessor of land is under no duty to such person to make the premises safe or to warn of dangerous conditions thereon, the possessor being liable only for 'wanton or willful' acts or 'active negligence.' Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1, 22 L.R.A.,N.S., 1045, 17 Ann.Cas. 576. The negligence charged on the part of defendant in this case was not 'active' or 'wanton or willful,' but it was what is characterized as 'casual' or 'passive' negligence. Ziegler v. Elms, Mo., 388 S.W.2d 839.
Certain carefully limited exceptions have permitted liability on the part of a possessor of land to an entrant thereon when no liability would exist under the above classification, but plaintiff does not rely on any of them. In fact, he affirmatively states that the instrumentality causing his injury does not qualify as an 'attractive nuisance,' and that it was not 'inherently dangerous,' so as to be within the doctrine stated in Boyer v. Guidicy Marble, Terrazzo & Tile Co., Mo., 246 S.W.2d 742. He also admits that the circumstances of this case are not governed by the 'hard-by' doctrine as set forth...
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...Miller, 373 Mich. 519, 129 N.W.2d 885 (1964) (social guest sued on the theory of negligence for a slip and fall accident); Richey v. Kemper, 392 S.W.2d 266 (Mo.1965) (landowner sued in negligent for failure to upkeep property); Felix v. O'Brien, 413 Pa. 613, 199 A.2d 128 (1964) (plaintiff s......
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