Roach v. Herz-Oakes Candy Co.

• Citation: 212 S.W.2d 758,357 Mo. 1236
• Decision Date: 12 July 1948
• Docket Number: 40557
• Parties: Loretta Roach (now Loretta Null), Appellant, v. Herz-Oakes Candy Company and Mercantile-Commerce Bank and Trust Company
• Court: Missouri Supreme Court

212 S.W.2d 758

357 Mo. 1236

Loretta Roach (now Loretta Null), Appellant, v. Herz-Oakes Candy Company and Mercantile-Commerce Bank and Trust Company

No. 40557

Supreme Court of Missouri

July 12, 1948

Appeal from Circuit Court of City of St. Louis; Hon. Wm. B Flynn, Judge.

Affirmed.

Carl A Enger, Joseph N. Hassett and Ernest E. Baker for appellant.

(1) The evidence on the issues of control of the premises by defendant Herz-Oakes Candy Company made a jury question. Brinkley v. United Biscuit Co. of Am., 164 S.W.2d 332, 349 Mo. 1227; Cech v. Mallinckrodt Chemical Co., 20 S.W.2d 509, 323 Mo. 601. (2) Defendant Herz-Oakes Candy Company owed deceased, Melbourne Roach, the duty to exercise ordinary care to have the window in question reasonably safe to be washed in the usual and customary way. Streicher v. Mercantile Bank & Trust Co., 31 S.W.2d 1065; Jewell v. Kansas City Bolt & Nut Co., 245 Mo 720, 151 S.W. 966; Cummings v. Union Quarry Co., 87 S.W.2d 1039, 231 Mo.App. 1224; Kiehling v. Humes Deal Co., 16 S.W.2d 637. (3) The evidence made a jury question on the issue of knowledge of the defective condition of the window by defendant Herz-Oakes Candy Company. Wack v. F.E. Schoenberg Mfg. Co., 53 S.W.2d 28, 331 Mo. 197; Weed v. American Car & Fdry Co., 14 S.W.2d 655, 322 Mo. 137; Henderson v. Wilson Stove & Mfg. Co., 197 S.W. 177. (4) The evidence made a jury question on the issue of negligence and proximate cause against defendant Herz-Oakes Candy Company. Cech v. Mallinckrodt Chemical Co., 20 S.W.2d 509, 323 Mo. 601; Creeger v. St. Charles, 11 S.W.2d 750; Stewart v. Laclede Gas Light Co., 241 S.W. 909; Settle v. St. L. & S.F. Ry., 127 Mo. 336. (5) The evidence made a jury question on the issue of negligence in making repairs on the part of the defendant Mercantile Commerce Bank and Trust Company, the owner of the premises. Bartlett v. Taylor, 174 S.W.2d 844, 351 Mo. 1060; Lasky v. Rudman, 85 S.W.2d 501, 337 Mo. 359; Shaw v. Butterworth, 38 S.W.2d 57, 327 Mo. 622; Marks v. Nambil, 245 N.Y. 256, 157 N.E. 129.

Evans & Dixon, Wm. W. Evans and John F. Evans for Herz-Oakes Candy Company, respondent.

(1) Respondent, Herz-Oakes Candy Company, was not in such occupancy and control as to make it legally responsible for the maintenance and repair of the 514 Locust Street premises, and it was under no duty to inspect or to exercise ordinary care to maintain the property in a reasonably safe condition. McKeighan v. Kline's, Inc., 339 Mo. 523, 98 S.W.2d 555; Ducoulombier v. Baldwin, 101 S.W.2d 96. (2) Roach was the employee of an independent contractor and, at best, was merely an invitee or business visitor. Under all the circumstances, his status would seem to be more nearly that of a bare licensee. The only legal obligation imposed upon Herz-Oakes was to warn him of undisclosed or hidden dangers, known to it but unknown to him. Annotation, 44 A.L.R. 944; McLaughlin v. Creamery Package & Mfg. Co., 130 S.W.2d 656; Feldewerth v. Great Eastern Oil Co., 149 S.W.2d 410; Stein v. Battenfeld Oil & Grease Co., 327 Mo. 804, 39 S.W.2d 345; Lindquist v. S.S. Kresge Co., 345 Mo. 849, 136 S.W.2d 303. (3) If the fatal accident resulted from a latent defect in the window, Herz-Oakes had no knowledge of it and could be charged with none. Togo Gin Co. v. Hite, 190 Ark. 454, 79 S.W.2d 262; Varas v. James Stewart & Co., 223 Mo.App. 385, 17 S.W.2d 651; McLaughlin v. Creamery Package & Mfg. Co., supra. (4) Under the circumstances, no duty to inspect the 514 Locust Street premises could be imposed on Herz-Oakes. Varas v. James Stewart & Co., 17 S.W.2d l.c. 653; Feldewerth v. Great Eastern Oil Co., 149 S.W.2d l.c. 414; McHugh v. National Lead Co., 60 F.Supp. 17. (5) If the window was in an obviously dangerous condition, Herz-Oakes was under no duty to warn or otherwise protect the window washers, and Roach assumed the danger from such obvious defects. Stein v. Battenfeld Oil & Grease Co., supra; Feldewerth v. Great Eastern Oil Co., supra. (6) The evidence did not make a jury question on the issues of negligence and proximate cause, for the reason that the circumstantial evidence does not point to the liability of either defendant to the exclusion of other and more probable causes, and does not exclude guesswork, speculation and conjecture. Fritz v. St. Louis, I.M. & S. Ry. Co., 243 Mo. 62, 148 S.W. 74; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31; Feldewerth v. Great Eastern Oil Co., 149 S.W.2d l.c. 413.

Wilton D. Chapman for Mercantile-Commerce Bank and Trust Company, respondent.

(1) Where all the facts connected with the accident fail to point to the negligence of the defendant as the proximate cause of the accident, but show a state of affairs where an inference could be as reasonably drawn that the accident was due to a cause or causes other than the negligent act of the defendant, then the plaintiff cannot rely upon mere proof of the surrounding facts and circumstances of the accident, and the defendant is not called upon to explain the cause of the accident and to purge himself of the imputed or inferential negligence. McGrath v. Transit Co., 197 Mo. l.c. 104; Coin v. Lounge Co., 121 S.W. 1, 222 Mo. 488; Fuchs v. St. Louis, 133 Mo. l.c. 196, 31 S.W. 508; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31; Tildewerth v. Great Eastern Oil Co., 149 S.W.2d l.c. 413. (2) It is settled law that the duty to keep premises safe for invitees extends only to such portions of the premises as are expressly or impliedly included within the invitation, and there is no duty with respect to the safety of other portions of the premises. Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1, 22 L.R.A. (N.S.) 1045, 17 Ann. Cas. 576; Ryerson v. Bathgate, 67 N.J. Law, 337, 51 A. 708, 57 L.R.A. 307; Shaw v. Goldman, 116 Mo.App. 332, 92 S.W. 165; Menteer v. Scalzo Fruit Co., 240 Mo. 177, 144 S.W. 833; Barry v. Calvary Cemetery Assn., 106 Mo.App. 358, 80 S.W. 709; Shuck v. Security Realty Co., 201 S.W. 559. (3) Plaintiff's deceased husband, if not a trespasser, was on the premises not on the invitation of the owner nor by its permission, but on the invitation and by the permission of the co-defendant only. The landlord is not liable to the tenant or his guests and invitees because of defects in the rented premises; and, in the absence of a convenant or agreement to that effect, is not required to make repairs or keep the premises in a safe or suitable condition. No liability arises against the landlord for such failure, except from some active wrongdoing, and not from mere negligence. Mahnken v. Gillespie, 43 S.W.2d 797; Degnan v. Doty, 246 S.W. 922; Buxton v. Rothchild, 173 S.W.2d 681, and authorities there cited. (4) An experienced window washer employed to wash the windows of a building which is defective and which defect could have been discovered by him in the exercise of due care on his part, is precluded from recovery whether the ground is termed assumption of risk or contributory negligence, there being a positive duty on his part before attempting to wash the window, to inspect the same and adopt proper precautions for his own safety. Green v. Pyne, 28 A.L.R. 616; Stein v. Battenfeld Oil & Grease Co., 327 Mo. 804, 39 S.W.2d 345.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

Action for $ 10,000 damages for the wrongful death of plaintiff's former husband, Mellbourne W. Roach, a window washer who was killed, the result of falling from the fourthstory window of a building belonging to defendant Mercantile-Commerce Bank and Trust Company and situate at 514 Locust Street in St. Louis. The defendant Herz-Oakes Candy Company was joined as a party defendant on the theory such defendant was in the occupancy and control of the building as the lessee of defendant Trust Company.

At the conclusion of plaintiff's evidence, the trial court sustained defendants' motions for a directed verdict, and plaintiff has appealed from the consequent judgment for defendants.

Plaintiff in her petition alleged that the window which plaintiff's decedent was washing when he fell was in a dangerous and defective condition; that defendants were negligent in permitting the window to become and be in such condition, in assuring plaintiff's decedent the window was safe for washing, in suffering and permitting the window washing when defendants knew or should have known the window was in a dangerous and defective condition, and in failing to warn the deceased of the window's condition. Defendants by answers tendered the general issue and set forth affirmatively contributory negligence and assumption of risk.

Plaintiff-appellant contends the evidence was substantial and sufficient in tending to show defendant Candy Company was in control of the building; that defendant Candy Company owed deceased the duty to have the window safe for washing in the usual and customary way; and that defendant Candy Company knew of the window's defective condition. And plaintiff-appellant urges there was substantial evidence tending to show defendant Trust Company, the owner and lessor, had assumed the duty of repairing the windows and was negligent in failing to repair them so that they were reasonably safe.

It is contended by defendant-respondent Candy Company that it was not in such occupancy or control of the building as to make it legally responsible; that the deceased was an employee of an independent contractor and so was at best merely an invitee or business visitor, and Candy Company had only the obligation to warn deceased of hidden dangers known to Candy Company and unknown to plaintiff's decedent; that under the circumstances shown in evidence Candy Company had no duty to inspect the premises; that, if the death was caused by a latent defect in the window, Candy Company could have had no...