Ryan v. Standard Oil Co. of Indiana
| Decision Date | 08 November 1940 |
| Docket Number | 25426 |
| Citation | 144 S.W.2d 170 |
| Parties | THOMAS J. RYAN, Respondent, v. STANDARD OIL COMPANY OF INDIANA, a corporation, and HALL BASYE, Defendants, STANDARD OIL COMPANY OF INDIANA, a corporation, Appellant |
| Court | Missouri Court of Appeals |
Rehearing Denied Nov. 26, 1940.
Appeal from Circuit Court, City of St. Louis. Hon. James E McLaughlin, Judge.
AFFIRMED.
This is an action to recover damages for personal injuries sustained by plaintiff in a fall which occurred on the premises of defendant Standard Oil Company of Indiana. Said defendant company owned and operated a filling station at the northwest corner of Lafayette and California Avenues, in the City of St. Louis. Plaintiff had purchased a tire from defendant company and at the time he fell and sustained his injuries he went upon the filling station premises for the purpose of making a payment on the purchase price of the tire. The filling station area was paved with concrete. There was a driveway entering the station from Lafayette Avenue and another entering from California Avenue.
The accident, through which plaintiff sustained the injuries for which he sues, occurred on February 1, 1936, about 2:30 o'clock in the afternoon. There was a sidewalk on Lafayette Avenue along the south side of the filling station premises. Plaintiff walked north on the west side of California Avenue across Lafayette Avenue to the sidewalk. He walked west on the sidewalk to the driveway, and then walked over the driveway onto the pavement of the filling station. At a point a few feet north of the north line of the sidewalk, and about twelve feet from the curb, he stepped aside to avoid a patch of ice on the pavement, and stepped on what looked like dirty concrete, on which he slipped and fell, and which he thereafter found was ice covered with dirty and greasy scum.
Defendant Basye was an employee of defendant oil company as an attendant at the station. He went on duty about twelve o'clock and was on duty at the time of the accident.
The trial, with a jury, resulted in a verdict in favor of defendant Basye, and in favor of plaintiff against defendant Standard Oil Company for $ 3,500. Judgment was given accordingly, and defendant Standard Oil Company appeals.
Appellant assigns error here for the refusal of its instruction in the nature of a demurrer to the evidence. Appellant puts the assignment on the ground that the evidence fails to show that appellant had knowledge of the presence of the ice on the pavement on which plaintiff slipped and fell, or that the ice had been on the pavement a sufficient length of time to charge appellant with knowledge of its presence, in time to have avoided the accident.
The evidence shows that at the time of the accident there were generally splotches of ice all over the station pavement, and that this condition existed for several days preceding the accident, though defendant Basye stated that he saw no ice on the pavement on the afternoon of the accident.
On the day of the accident and for a week prior there to the temperature in the City of St. Louis varied from ten degrees below zero to twenty-eight above zero, with a minimum of ten inches of unmelted snow on the ground. Sunshine on the day before the accident was sixty per cent of normal, and on the day of the accident was zero.
The accumulation of dirt and grease forming a dirty greasy scum over the ice on which Plaintiff slipped and fell shows that the ice was not of recent formation.
We think the jury under the facts and circumstances shown in evidence was entitled to say whether or not the ice was on the pavement a sufficient length of time for appellant in the exercise of ordinary care to have discovered and removed the same before Plaintiff slipped on it and fell. Vance v. Kansas City, 123 Mo.App. 644, 100 S.W. 1101; Lowther v. St. Louis-San Francisco Ry. Co., 214 Mo.App. 293, 261 S.W. 702; Evans v. Sears, Roebuck & Co. (Mo. App.), 104 S.W.2d 1035; Hogan v. S. S. Kresge Co. (Mo. App.), 93 S.W.2d 118.
Appellant urges that its liability, if any, rests upon the negligence of defendant Basye in failing to keep the filling station premises free from ice, and that the verdict acquitting Basye and convicting appellant of negligence is inconsistent and self-destructive and therefore cannot stand.
It is settled law that for mere nonfeasance a servant is not liable to third persons, but is liable only for misfeasance. Ordinarily, a wrongful commission is regarded as misfeasance while a wrongful omission is merely nonfeasance. However, a wrongful omission is not always regarded as mere nonfeasance. Under some circumstances a wrongful omission is regarded as misfeasance. If a servant undertakes the performance of a positive act and wrongfully omits an act essential to the proper performance or the positive act such omission is regarded as misfeasance. For example, if a locomotive engineer undertakes the positive act of operating his master's locomotive over a crossing, and wrongfully omits to sound the whistle or ring the bell, such omission constitutes misfeasance. So, also, where a servant or agent undertakes the entire management of premises, with complete and exclusive control thereof, any wrongful omission respecting such undertaking is regarded as misfeasance, for which he is liable. But we have no such case before us here.
In Blasinay v. Albert Wenzlick R. E. Co., 235 Mo.App. 526, 138 S.W.2d 721, 725, this court, speaking through Presiding Judge Hughes, stated the law, as follows:
"It matters not whether the cause of action is for negligence, assault, false imprisonment, or fraud and deceit, the agent or servant is liable because of his own misfeasance or wrongful act; the master or principal is liable because he acts by his servant or agent, and is therefore bound to see that no one suffers legal injury through the servant's wrongful act done in the master's or principal's service within the scope of the agency."
The court then quoted, with evident approval, from 14a Corpus Juris 768, as follows:
"Where the acts of the agents of the corporation are not such as to impose liability upon them individually there is no liability upon the part of the corporation, except in cases where the agent simply negligently fails to do what should have been done."
See, also: McGinnis v. Chicago, Rock Island & Pacific Ry. Co., 200 Mo. 347, 98 S.W. 590; Guthrie v. Albert Wenzlick R. E. Co. (Mo. App.), 54 S.W.2d 801; Michely v. Mississippi Valley Structural Steel Co. (Mo. App.), 221 Mo.App. 205, 299 S.W. 830; Peckham v. Lindell Glass Co., 9 Mo.App. 459; Hamm v. Chicago, Burlington & Quincy R. Co. (Mo. App.), 211 Mo.App. 460, 245 S.W. 1109; McMahon v. Chicago, Burlington & Quincy R. Co., (Mo. App.) 277 S.W. 356; Jewell v. Kansas City Bolt & Nut Co., 231 Mo. 176, 132 S.W. 703; Lambert v. Jones (Mo.), 339 Mo. 677, 98 S.W.2d 752, l.c. 757, 758; Brown v. Yeckel, Earickson & Co. (Mo. App.), 129 S.W.2d 66; Stith v. J. J. Newberry Co., 336 Mo. 467, 79 S.W.2d 447.
In McGinnis v. Chicago, Rock Island & Pacific Railway Company, 200 Mo. 347, 98 S.W. 590, our Supreme Court stated the rule as follows:
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