Senseney v. Landay Real Estate Co.

• Decision Date: 14 September 1939
• Docket Number: 35774
• Parties: Eugene T. Senseney v. Landay Real Estate Company, a Corporation, Appellant
• Court: Missouri Supreme Court

131 S.W.2d 595

345 Mo. 128

Eugene T. Senseney v. Landay Real Estate Company, a Corporation, Appellant

No. 35774

Supreme Court of Missouri

September 14, 1939

Appeal from Circuit Court of City of St. Louis; Hon. William S Connor, Judge;

Reversed.

Anderson Gilbert, Wolfort, Allen & Bierman and Sullivan Reeder & Finley for appellant.

(1) The operation of the elevator by the plaintiff was solely for his own pleasure, convenience and benefit, and while so engaged, he was, at the most, a mere licensee. 45 C. J. 812; 17 R. C. L. 566; Glaser v. Rothschild, 221 Mo. 184, 104 A. L. R. 1177. (a) Mere passive acquiescence on the part of the owner in the use of premises, without any enticement, allurement or inducement on the part of the owner, makes the user a bare licensee and not an invitee. Rooney v. Woolworth, 74 Conn. 720, 52 A. 411; Straub v. Soderer, 53 Mo. 38; Barry v. Cemetary Assn., 106 Mo.App. 358; Barry v. Cemetary Assn., 211 Mo. 105; Boneau v. Swift & Co., 66 S.W.2d 175; Shaw v. Goldman, 116 Mo.App. 332; O'Brien v. Western Steel Co., 100 Mo. 188; Carr v. Mo. Pac. Ry. Co., 195 Mo. 227; Cox v. Bondurant, 220 Mo.App. 953; Mazey v. Loveland, 158 N.W. 44. (b) When an invitee exceeds the limits of his invitation he becomes a trespasser or licensee, to whom the owner owes no affirmative duty to exercise ordinary care for his safety. Menteer v. Fruit Co., 240 Mo. 184; Kelly v. Benas, 217 Mo. 1; Forsythe v. Grocery Co., 283 Mo. 49; Kennedy v. Phillips, 319 Mo. 584; Ford v. Rock Hill Quarries Co., 111 S.W.2d 173. (c) An invitation will not be implied from occasional use. Gilliland v. Bondurant, 332 Mo. 901; Glaser v. Rothschild, 221 Mo. 180. (2) The demurrer to the evidence should have been sustained because, under the evidence, the plaintiff was guilty of contributory negligence as a matter of law. Bonanomi v. Purcell, 287 Mo. 449; Shuck v. Security Realty Co., 201 S.W. 559; Cox v. Bondurant, 220 Mo.App. 954; Rice v. Goodspeed Real Estate Co., 254 Mich. 49, 235 N.W. 814; Grand Rapids Bedding Co. v. Furniture Co., 188 N.W. 538; State ex rel. v. Trimble, 312 Mo. 335; Katz v. North Kansas City Dev. Co., 215 Mo.App. 662; Cash v. Sonken-Calamba Co., 322 Mo. 349; Keeter v. Devoe & Reynolds, 338 Mo. 988.

Eagleton, Waechter, Elam & Clark for respondent.

The invitation to plaintiff may be properly and fully founded in the known, customary, and long continued uses made of the elevators by defendant's tenants -- particularly plaintiff's practice, extending over many years, of using and operating the passenger elevator -- which were acquiesced in and assented to by defendant taking no steps to end them, such practices thereby becoming an established part of the relationship between defendant and its tenants. Gilliland v. Bondurant, 332 Mo. 881, 59 S.W.2d 679; Kennedy v. Phillips, 319 Mo. 573, 5 S.W.2d 33; Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1; Northern v. Chesapeake & Gulf Fisheries Co., 8 S.W.2d 982; Schaaf v. St. L. Basket & Box Co., 151 Mo.App. 35, 131 S.W. 936, opinion adopted, 160 Mo.App. 598, 140 S.W. 1197; American Veterinary Laboratories v. Glidden Co., 59 S.W.2d 53; Katz v. North Kansas City Dev. Co., 14 S.W.2d 701. The defendant, having invited plaintiff's use and operation of the elevator, and having customarily (if not always) kept the key to the shaft door on top of the mail box only when the elevator was at the lobby landing, the presence of the key on top of the mail box was the legal equivalent of assurance that the elevator was at the lobby landing, and an invitation to enter the shaft; and, while such assurance and invitation continued to exist from the key being left on top of the mail box, defendant was negligent in moving the elevator to an upper floor without removing the key or warning the plaintiff. Grote v. Hussman, 223 S.W. 129; Fox v. Mo. Jobbing House, 32 S.W.2d 131. The plaintiff was not guilty of contributory negligence. Whether he did, or did not do, that which constituted ordinary care for his own safety under the circumstances was, at the very least, a question for the jury. Baldwin v. Hanley & Kinsella Coffee Co., 202 Mo.App. 650, 216 S.W. 998.

Hyde, C. Bradley and Dalton, CC., concur.

OPINION

HYDE

This is an action for damages for personal injuries sustained by falling into an elevator shaft where plaintiff opened the door to use the elevator. Plaintiff had a verdict for $ 29,505.75. Defendant has appealed from the judgment entered.

Defendant assigns as error the refusal of the court to sustain its demurrer to the evidence. Defendant contends that plaintiff was not entitled to recover both because there was a failure to show any actionable negligence of defendant, and because the evidence showed that plaintiff was guilty of contributory negligence as a matter of law. Therefore, the facts are hereinafter stated as shown by the evidence considered most favorably to plaintiff. There is much in the briefs on the question of whether plaintiff, in his use of the elevator, was an invitee or a licensee. Because of the view we take, we consider this immaterial.

Defendant owned, maintained and operated a four-story office building, known as the Lister Building, located at the southwest corner of Taylor and Olive Streets, in the City of St. Louis. The offices in the building were let, principally to physicians and dentists. The building was open to the public daily from 8 A. M. to 9 P. M., excepting Sundays and holidays, when it was open to the public from 8 A. M. to 3 P. M. During these hours, defendant provided elevator service to its tenants and the public by regular elevator operators. When the building was closed to the public, defendant's only representative in the building was a negro janitor by the name of Bishop, who lived in the basement of the building. The main entrance to the building consisted of a pair of swinging "storm doors," which were never locked, and an "inner door," locked when the building was not open to the public, opening into the first floor lobby. Defendant furnished tenants with keys to the "inner door," because of physicians' and dentists' business requiring access to their offices at all times. In the east part of the rear (south side) of the lobby, there was a passenger elevator in an enclosed shaft, with an entrance door from the lobby to the elevator. In the west portion of the rear of the lobby there was a stairway leading upward, toward the south, to the second floor. Between the passenger elevator shaft and the stairway, about in the center of the rear of the lobby, there was a passageway leading south from the lobby proper to the entrance of a freight elevator. On the east wall of the lobby, about three feet north of the entrance door to the passenger elevator, there was a large mail box with a mail chute coming down into it from the upper floors. The top of this mail box was about six feet above the level of the lobby floor.

On each floor of the building there was an entrance doorway in the elevator shaft in the same relative position as that in the lobby on the first floor. The doors on the four upper floors were all alike, except that there was a round hole, referred to as a "keyhole" in the first floor (lobby) door, about five-eighths of an inch in diameter. These doors, opening into the elevator shaft, on all four floors of the building were seven feet high, approximately half that wide, and of solid metal, except for a small diamond-shaped glass panel in the center of the door, about five feet above the floor level. These doors were opened, from inside the elevator shaft, by means of a bar and hinge arrangement which caused them to slide, from the opening in the east part of the north wall of the shaft, toward the west. They closed, "automatically." There was no means of opening the doors on the three upper floors of the building, except from within the elevator shaft. The first floor (lobby) door could be opened from outside the elevator shaft by a person in the lobby, by inserting what was referred to as a "key" (in fact, a metal rod about three-eighths of an inch in diameter and one foot long) through the keyhole in the door, and pressing downward, so as to raise the bar on the inside of the door. This would "break" the hinge arrangement, and open the door sufficiently to permit the insertion of the person's fingers between the east edge of the door and the door frame. When the "key" was withdrawn from the "keyhole," the door could be pulled, or slid, open by hand. Of course, this door could have been opened with any other metal rod of the same size and length. This "key" was kept in the elevator cab by the operator when the elevator was being used during the time the building was open to the public; and, after regular hours, when the operator had gone, this "key" was kept on top of the mail box in the lobby. Whenever a person operating the elevator desired to leave it at one of the three upper floors, it was necessary to use some means to keep the door on that floor open, in order to prevent the door from "automatically" closing and thereby preventing access to the elevator cab. The door was generally held open by wedging the "key" in the floor slot in which the door moved back and forth. Inside the cab of the elevator, there was an electric light, controlled by a switch button located at the west side of the front (north) wall of the elevator cab, and it was necessary to be inside the elevator cab to turn this light switch. When the elevator was not in use, the electric light in the elevator cab was kept turned off. The edge of the floor of the cab (when at the first floor) came within "about an inch and a quarter" of the "landing, on the outside" in the lobby.

When tenants of the building would come in it to go to offices on the upper...