Shreve v. Edmundson Art Foundation

• Decision Date: 13 November 1951
• Docket Number: No. 47895,47895
• Citation: 50 N.W.2d 26,243 Iowa 237
• Parties: SHREVE v. EDMUNDSON ART FOUNDATION, Inc.
• Court: Iowa Supreme Court

Page 26

50 N.W.2d 26

243 Iowa 237

SHREVE v. EDMUNDSON ART FOUNDATION, Inc.

No. 47895.

Supreme Court of Iowa.

Nov. 13, 1951.

Rehearing Denied Jan. 11, 1952.

Guy A. Miller and Denmar Miller, of Des Moines, for appellant.

Gamble, Read, Howland, Gamble & Riepe, of Des Moines, for appellee.

MANTZ, Justice.

Margrette L. Shreve brought suit for damages against the Edmundson Art Foundation alleging that such defendant, in the operation of the art institute in the city of Des Moines, Iowa, was negligent and that by reason of such negligence she was injured. Defendant resisted such claim and alleged that in such operation it was free from negligence and was not liable therefor. The trial court dismissed plaintiff's petition and she has appealed to this court. A more detailed statement of the specific claim which plaintiff urges against defendant, and the resistance of defendant and the evidence will be later set forth in this opinion.

About 7:20 P. M., November 4, 1948, Margrette Shreve of Panora, Iowa, and a companion, entered a building in Greenwood Park, Des Moines, Iowa, said building being owned, controlled, and operated by the defendant, Edmundson Art Foundation, Inc. It was devoted to and used for various art purposes, such as painting, weaving, pottery, molding, etc. It was open to the public, no admission being charged. As Mrs. Shreve and her companion were walking in one of the halls or corridors of such building she slipped and fell to the floor, fracturing her hip. She was taken to the Lutheran Hospital in Des Moines and remained there until March 4, 1949, when she was removed to the home of a daughter in Des Moines and remained there about three months. She was then taken to her home in Panora and later went to various places. Her injury was serious and painful and permanent in its nature.

I. As heretofore stated the court, at the conclusion of all the evidence and upon motion of the defendant, directed a verdict against the plaintiff and in so doing stated that the evidence failed to show that the defendant was negligent in the operation of the art museum; also that as a charitable institution it was not liable for damages. At the same time, the court entered judgment against the plaintiff for costs.

Plaintiff in her brief and argument states: 'Two questions are presented in this appeal:

(1) Is the defendant a charitable institution, and if so, did its status exempt it from liability for this tort? and,

(2) Was there evidence of the defendant's negligence in the record sufficient to take the case to the jury?'

In this opinion we will refer to the Edmundson Art Foundation as the defendant, or the museum.

II. We will take up and consider the last stated question first. If it should appear that the plaintiff has failed to show negligence on the part of the defendant in the particular claimed, then it will not be necessary to pass upon the first question propounded, to wit, as a charitable institution is defendant liable for negligence to plaintiff?

There is little dispute in the evidence. The difficulty arises as to the legal effect of such evidence and the conclusions to be arrived at.

Before we set forth from the record various parts of the evidence which the plaintiff argues were sufficient to take the case to the jury on the question of defendant's negligence, we will briefly set forth some matters which are a background to the matter involved.

The building in question was erected from a bequest by J. D. Edmundson, who, in his will left a large sum of money to be used for a building and its maintenance. It was provided that the building was to be controlled by a Board of Trustees. It was further provided that the building was to be devoted to art purposes, and was to be open to the public with no admission charged.

The trustees picked a site for the building in Greenwood Park, Des Moines, Iowa, a beautiful wooded area in the west part of the city. Construction was begun in 1946 and the building was opened to the public early in the summer of 1949. The cost of the building and landscaping was estimated at approximately two million dollars. The building when constructed was the product of the latest architectural designing, planning and workmanship. The building stands upon a rather high point with drives and walks on the outside. It has the main entrance, a large lobby and lounging rooms; rooms with walls and cases for the display of paintings and other matters usual to such buildings. Provision was made for rooms where various work is carried on--painting, drawing, sculpture, weaving, ceramics, and other lines. Classes in such matters are carried on with teachers employed to instruct. A small charge is made for such instruction.

The board of trustees has general charge of the property. They receive no salaries for their services. They select an Art Director who directs the activities of the institution. There are from 12 to 13 employees who do the work connected with the maintenance and operation of the building. The cost of operation is largely paid from a fund derived from the sale of memberships, and public donations.

III. The plaintiff on November 4, 1948, at about 7:30 P. M. went to the museum to see about enrolling as a pupil in the art school. She had with her a companion, Mrs. Inez Barton, a cousin, of Des Moines. Mrs. Barton was then a pupil in a class in drawing. Plaintiff was then 62 years of age. Plaintiff came upon the invitation of Mrs. Barton. They came part way by street car and then walked approximately three blocks to the museum. They approached on the east side and used a walk to the south side. There had been a drizzling rain in the afternoon but it had stopped when plaintiff and her companion arrived. There was a doorway leading from the walk into a corridor running south from the main lobby. This corridor led toward the space devoted to the class rooms. When plaintiff and her companion entered the corridor they were on their way to the class rooms. Plaintiff had been in the main part of the building once before. This corridor is quite wide and at a point on the south end it intersects a corridor running east towards the class room, the destination of plaintiff and Mrs. Barton. A few feet from the point where the left turn was to be made plaintiff slipped and fell, fracturing her hip. Where she fell was approximately the middle of the corridor. There is no question about the injury. According to her surgeon, plaintiff's injury is permanent in its nature.

The floor where plaintiff fell was of cement. The builder of the museum was Arthur H. Neumann, a building contractor for 35 years. His company built many of the larger buildings in Des Moines,--the Equitable Building, Bankers' Life, Telephone Building, Insurance Exchange, and others. He testified that the floors were built and laid in accordance with the plans and specifications prescribed by the architects and that they accepted the floors after they were laid. He testified that he was there frequently while the building was being constructed. A few days before he testified, he had examined the floor at the point where plaintiff fell. We quote from his testimony as shown by the record:

'I was pleased to see that the floor was standing up, that is, that the surface wasn't wearing. I was in the building and all parts of it from time to time, about the time the construction was completed. The floor was as level as it can possibly be made with a trowel. How you get the surface depends on the type of floor specified. In this instance, that specified is top coat wearing surface on top of the concrete base. Your top coat is a rich mixture and there are screens laid on top of the rough concrete and strips that are level. Then you use a straight edge to level off the top coat as it is applied. Then it is allowed to lie there for a while until it starts to set. Then the cement finishers will give it what they call the first troweling. After that, they trowel any defects out of the floor. Then they will go back over it again the second time. Then the final troweling and the third troweling is done just before it becomes too hard so it can not be troweled any further. It was a hand troweled job. Recently, when I observed it, there was no deterioration or anything of that sort that was observable there from the time it was laid. I couldn't detect any spots in the southerly end of the corridor that were any different from the balance of the floor. It looked like a uniform floor to me. I didn't get down on my hands and knees and run my hands over it. I walked over it and felt the surface with my feet. I would say the south 15 or 20 feet of that corridor was uniform. I would say that when any material is applied with a trowel it is impossible to get a surface that is just the same all over. It might be that there might be a little more cement in one spot than another. It is impossible to make it perfect. This was a high type building and therefore called for a very high type floor. It is a finer floor than you would get in the ordinary warehouse or where the floor would have rough use.'

Mrs. Barton, as a witness, testified that she was out to the museum a few days before she testified and that she thought the floor to the corridor was the same as on the evening of November 4, 1948. 'I didn't notice any difference. We walked together until we got to the end of the corridor. We are both rather swift walkers and we didn't dawdle along. We walked along briskly. She has always walked rapidly with a quick step and so do I. When we were walking down there we didn't walk any differently than we naturally do. There was nothing in particular in connection with the floor that attracted our attention as we were walking down the hall but when we got down to the end of the corridor, I was just one step ahead of her just at the corner and at that time Mrs. Shreve fell about a foot from the corner. She fell on her left side.' An...