Sherman v. Alexander & Sons

• Decision Date: 14 September 1937
• Docket Number: No. 24360.,24360.
• Court: Missouri Court of Appeals
• Parties: SHERMAN v. ALEXANDER & SONS.

108 S.W.2d 616

SHERMAN v. ALEXANDER & SONS.

No. 24360.

St. Louis Court of Appeals. Missouri.

September 14, 1937.

Appeal from St. Louis Circuit Court; J. W. McAfee, Judge.

"Not to be published in State Reports."

Action by Minnie Sherman against Alexander & Sons, a corporation. Judgment on a verdict for plaintiff, and from an order granting defendant a new trial, plaintiff appeals.

Affirmed and cause remanded.

Wilbur C. Schwartz and Charles E. Morrow, both of St. Louis, for appellant.

Harry G. Erbs, Karl P. Spencer, and George F. Wise, all of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action to recover damages for personal injuries. The cause was tried to a jury. There was a verdict in favor of plaintiff for $6,000, and judgment was given accordingly. From the order of the court granting defendant a new trial, plaintiff appeals.

The evidence shows that the defendant corporation on December 31, 1933, and prior thereto, was conducting an undertaking establishment at 6175 Delmar boulevard, in the city of St. Louis. Defendant leased, used, and controlled a two-story building, with a basement, for that purpose, with a garage in the rear. The building was on the north side of Delmar boulevard and fronted on said boulevard. The basement of the building contained display rooms for caskets, a preparation room for embalming, and a stock room for surplus stock. There was also a furnace in the basement. On the first floor there was a funeral chapel, an office, a reception room, a family room, and parlors. On the second floor there were parlors, a smoking room, living quarters for help, embalmers and Guthrie Alexander, the resident manager, and his wife.

In the west portion of the second floor there was a funeral apartment in the front, a smoking room, parlors, and living quarters for two embalmers. In the east portion of the second floor there was a living room in the front, to the north of the living room there was a bedroom, to the north of that there was another bedroom, with a bathroom between the two bedrooms, and next a dining room, and then a kitchen, and on the north side a sunroom. Immediately west of the north end of the rooms just described there were also some rooms which were occupied by two assistant embalmers. The rooms in the east portion of the second floor just described were furnished to defendant's resident manager, Guthrie Alexander, and his wife, as living quarters, but the living room thereof was also used in case of an overflow in which to put a body. These rooms were furnished to Guthrie Alexander and his wife by defendant as a part of their salary as employees of the defendant. These rooms were connected by telephone with the main switchboard in the building. Guthrie Alexander and his wife, or one of them, was on duty at all times, and after the first floor of the establishment was closed down at night, the telephone was switched to their living rooms in order that they might receive calls and attend to the defendant's business, which was a part of their duties.

Immediately north of what is termed the "sunroom," which is the north room of the living apartment of Guthrie Alexander and his wife, above referred to, there was a back porch, which was completely inclosed with walls and windows. The sunroom had a number of windows in it, three on the north side. There was a door opening out of the sunroom, on the west side, onto the porch This door of the sunroom was but a few inches from the opening of an iron stairway about three feet wide attached to the north wall of the building and running down about fourteen feet eastwardly to the garage below. There were twenty-four iron steps in the stairway. The stairway had an iron post about two feet in height, which held the banister running down on the north side of the stairway to the garage below. The door opening out immediately in front of this stairway opened inwardly in the sunroom to the west, but there was a screen door attached to the outside of the door jamb, which opened to the east, and when this screen door was opened straight out it covered the top opening of the stairway to within about four or five inches of the iron post which held the banister or railing running down along the north side of the stairway. This inclosed portion was narrow, and the opening of the stairway on the east side took up all of the same except eighteen inches or two feet, where there was a low shelf on the north side upon which were placed articles, such as a garbage can, broom, waste basket, mop, beer box, and other things that were desired to be placed there. On the north side of the porch and immediately across from the door opening out from the sunroom there was an exhaust fan with a housing over it. This inclosed back porch was a part of the building and was four or five feet wide and was floored with concrete. Its length from east to west was ten or twelve feet. The landing at the top of the stairway was only about three feet wide because of the exhaust fan and shelf on the north side. The porch and stairway were used by Guthrie Alexander and his wife and other employees and by grocerymen, milkmen, tradesmen, and others, who had occasion to come and go the back way. On the porch there was installed an electric drop light from the ceiling which could be turned off and on either from the porch or from the garage below. There was also installed in the sunroom an electric drop light from the ceiling. The windows of the sunroom were furnished with shades and curtains.

Guthrie Alexander testified, for defendant, that the undertaking business was different from other businesses in that it had to be built up by virtue of contacts and friendships along with good will and good service, that an undertaker could not go to a person when there was a death in the family and say, "I am in the undertaking business," and that a part of the business is to effect many contacts with people and further cement the friendships made by these contacts.

Just before December 31, 1933, Mrs. Stansbury, a relative of Harvey Alexander, who was vice president of the defendant corporation, died, and her body was in the chapel of defendant's place on the first floor. She was an acquaintence and friend of the plaintiff. Some time before, Guthrie Alexander and his wife had invited ten friends, including the plaintiff and her husband, to their living quarters to a late lunch to be about midnight, December 31, 1933. Plaintiff and her husband went to the funeral chapel on the first floor some time in the evening before 10:30 o'clock for the purpose of viewing the body of Mrs. Stansbury and to console with her relatives and friends. The other guests who had been invited to attend this lunch and probably other persons were there, and about 10:30 p. m. plaintiff and her husband and these other eight guests were invited to go up to the apartment or living quarters of Mr. and Mrs. Guthrie Alexander, and they all repaired there and went into the sunroom and played pinochle for a while. Mrs. Alexander had prepared a lunch and had also prepared eggnog, which was in a three-gallon tin container, and which she had put on the back porch to cool. When the time came for serving the lunch, the plaintiff and two other ladies assisted Mrs. Alexander in getting the lunch onto the table in the dining room and serving it. The men in the party had already gone into the dining room and were standing around. One drink of eggnog around had already been served, and another drink around had been poured, but there was still eggnog left in the container, and the container at that time was on the table in the dining room.

Plaintiff testified that Mrs. Guthrie Alexander was fixing a percolator of coffee at the sink, and that plaintiff brought the container of eggnog from the dining room into the kitchen, and asked Mrs. Alexander what to do with it, and that Mrs. Alexander said to plaintiff, "Put it on the back porch," and that plaintiff took the container, which was twenty-two inches high and eight or nine inches in diameter, in her left arm and went through the sunroom door, opened the screen door, stepped out onto the porch, and let the screen door take care of itself, and in the dark saw the dim outline of what she thought was a shelf, and as she stepped forward while she was trying to put the container on the shelf she fell down the stairway and landed on the concrete at the bottom, and was seriously injured.

Plaintiff further testified that the porch was dark, and that she did not know the stairway was there, and that no one had informed her that the stairway was there, or warned her in reference thereto; that she never had been on the porch before and really did not know that there was a porch there; that she did not see the stairway before she fell.

Mrs. Clendening testified,...