Scott v. Kline's, Inc.

• Decision Date: 04 May 1926
• Docket Number: No. 19170.,19170.
• Citation: 284 S.W. 831
• Parties: SCOTT v. KLINE'S, Inc.
• Court: Missouri Court of Appeals

284 S.W. 831

SCOTT v. KLINE'S, Inc.

No. 19170.

St. Louis Court of Appeals. Missouri.

May 4, 1926.

Rehearing Denied June 1 1926.

Appeal from St. Louis Circuit Court, Franklin Miller, Judge.

"Not to be officially published."

Action by Kate M. Scott against Kline's, Inc. From a judgment sustaining defendant's motion for new trial, after verdict for plaintiff, plaintiff appeals. Reversed and remanded, with directions.

Foristel, Mudd, Hezel & Habenicht, of St. Louis, for appellant.

Jones, Hocker, Sullivan & Angert, of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff on May 23, 1923, as the result of a fall in the toilet and washrooms in defendant's store at 608 Washington avenue, in the city of St. Louis, Mo. The verdict was for plaintiff in the sum of $3,000. In due time a motion for a new trial was filed by defendant, and same was sustained by the court upon the grounds that the instructions in the nature of demurrers to the evidence should have been given. From the order sustaining defendant's motion for a new trial, plaintiff has appealed.

It is charged in the petition that the defendant was negligent in failing to exercise ordinary care to have, keep, and maintain the said ladies' toilet and washroom and the floors thereof in a reasonably safe condition for the use and convenience of its customers and patrons lawfully in said building, in that water was allowed, suffered and permitted to collect, accumulate, and remain on the floor of said ladies' toilet, which condition rendered the floor slick and slippery, and by reason thereof plaintiff was caused to fall and sustain injuries.

The answer was a general denial coupled with a plea of contributory negligence. The reply was conventional.

The evidence disclosed that defendant has a store in which ladies' apparel is sold, and maintains toilet and washrooms on the fourth floor for the use and convenience of its customers and patrons. It is first necessary to pass through the washroom before entering the toilet room, the floor of which is about six inches higher than that of the washroom. The two rooms are separated by a wall and door, and the floors of both are of tile.

On May 23, 1923, plaintiff went to defendant's store about 10:30 o'clock or a quarter to 11 to make certain purchases. While there she had occasion to go into the toilet, and was shown its location by one of defendant's employés. She did not notice the condition of the floor as she entered. After remaining there for about 10 minutes, she started from the toilet into the washroom, walking at an average gait, and, as she reached the step leading down into the washroom, she put her weight upon her right foot, and immediately slipped on the step, and fell down upon the floor of the washroom, sustaining painful injuries. She was helped to her feet, and immediately informed those assisting her that she had "slipped on some water." Looking back towards the toilet room, she observed that there was water on the floor and on the step where she fell. It appeared from footprints on the floor that water had been tracked back from the washroom towards the toilet room by two or three different persons. She further testified that upon arising she found that her hat was soiled, and that the bottom of her dress was wet.

Miss Octavia Tucker, called as a witness for plaintiff, testified that she was in the same toilet room at about 10 o'clock in the morning, and at that time had seen water on the floor of the washroom between the washstand and the door going into the toilet. She also observed the wet footprints on the toilet floor as though it had been traversed by more than one person. Miss Tucker was wearing a sash, which in some manner had become loosened. After going into the toilet, she rearranged the sash, and found that it had become wet.

Shortly after plaintiff was injured her daughter was called. Upon her arrival at defendant's store, the daughter stepped into the washroom, and also observed quite a few muddy tracks therein.

It was disclosed by defendant's evidence that defendant had employed a Mrs. Drew whose duty it was to care for the toilet and washrooms. Mrs. Drew testified that she went into the washroom on the fourth floor every 10 or 15 minutes during the day; that infrequently there was water on the floor; and that upon such occasions she had a cloth with which she wiped it up; that she had been in the washroom about 20 minutes before plaintiff was injured; and that there was no water on the floor at that time. Two other employés of defendant testified that the floor was dry at the time plaintiff fell. Her testimony that she had informed those helping her to her feet that she had slipped in the water was also controverted.

[1] By reason of the fact that defendant's motion for a new trial was sustained by the learned trial court upon the grounds that the instructions in the nature of demurrers to the evidence should have been given, the case is before us upon the single issue as to whether or not, under all the evidence, there was a case for the jury. In determining this point we are mindful that plaintiff must be given the benefit, not only of all testimony that was adduced in her behalf, but also of any favorable testimony that was given by defendant's witnesses, in addition to which she must be allowed the benefit of reasonable inferences of fact on all the proof. Williams v. K. C. S. R. Co., 257 Mo. 87, 165 S. W. 788, 52 L. R. A. (N. S.) 443; Stauffer v. Met. St. Ry., 243 Mo. 305, 147 S. W. 1032; Watts v. St. Joseph Lead Co. (Mo. App.) 243 S. W. 439; Larkin v. Wells (Mo. App.) 278 S. W. 1087.

[2, 3] Inasmuch as defendant maintained the toilet in which plaintiff was injured for the use of its customers, plaintiff, in using said toilet, was an invitee, and not a mere licensee. Main v. Lehman, 294 Mo. 579, 243 S. W. 91; Glaser v. Rotschild, 221 Mo. 180, 120 S. W. 1, 23 L. R. A. (N. S.) 1045, 17 Ann. Cas. 576. Plaintiff's status having been thus established, the question as to what duty was owed by defendant to her is presented. It has been held by a long line of decisions that the keeper of a store or other business establishment owes to invitees the duty to exercise reasonable care to keep his premises in a reasonably safe condition for use by such invitees in the transaction of the business in which they are engaged under his invitation. Main v. Lehman, supra; O'Donnell v. Patton, 117 Mo. 13, 22 S. W. 903; Mullen v. Sensenbrenner Mercantile Co. (Mo. Sup.) 260 S. W. 982, 33 A. L. R. 176; Cluett v. Union Electric L. & P. Co. (Mo. Sup.) 220 S. W. 865; Kean v. Shoening, 103 Mo. App. 77, 77 S. W. 335; Welch v. McAllister, 15 Mo. App. 492; Cluett V. Union Electric L. & P. Co. (Mo. App.) 205 S. W. 72; Shaw v. Goldman, 116 Mo. App. 332, 92 S. W. 165; Beckermann v. Kortkamp Jewelry Co., 175 Mo. App. 279, 157 S. W. 855; Gallagher v. Kroger Grocery & Bak. Co. (Mo. App.) 272 S. W. 1005. That defendant had...