State ex rel. First Nat. Bank in St. Louis v. Hughes

• Decision Date: 31 October 1940
• Docket Number: 37057
• Citation: 144 S.W.2d 84,346 Mo. 938
• Parties: State of Missouri at the relation of First National Bank in St. Louis, a Corporation, Relator, v. William C. Hughes, William Dee Becker and Edward J. McCullen, Judges of the St. Louis Court of Appeals
• Court: Missouri Supreme Court

144 S.W.2d 84

346 Mo. 938

State of Missouri at the relation of First National Bank in St. Louis, a Corporation, Relator, v. William C. Hughes, William Dee Becker and Edward J. McCullen, Judges of the St. Louis Court of Appeals

No. 37057

Supreme Court of Missouri

October 31, 1940

Writ quashed.

Jones Hocker, Gladney & Grand and William G O'Donnell for relator.

(1) On a writ of certiorari to an appellate court, the Supreme Court will eliminate a conflict between the Court of Appeals' opinion and the latest ruling of the Supreme Court on the subject, either as to a general principle of law announced or as to a ruling under a like, analogous or similar state of facts; the purpose of certiorari being to secure uniformity in opinions and harmony in the law. State ex rel. Kroger Gro. & Baking Co. v. Haid, 323 Mo. 9, 18 S.W.2d 478; State ex rel. Vulgamott v. Trimble, 300 Mo. 92, 253 S.W. 1014. (2) Respondents' opinion, which holds that because the evidence showed the presence of water upon the steps and that defendant had had ample time to remedy the condition, a case was made for submission to the jury of the question of defendant's negligence, is directly in conflict with the rule of liability of an owner or possessor of premises to an invitee as previously announced by this court. Stoll v. First Natl. Bank of Independence, 134 S.W.2d 97; Vogt v. Wurmb, 318 Mo. 471, 300 S.W 278; Mullen v. Sensenbrenner Merc. Co., 260 S.W 982; Cluett v. Union E. L. & P. Co., 220 S.W. 865; Williams v. Kansas City Term. Ry. Co., 288 Mo. 11, 231 S.W. 954; Paubel v. Hitz, 329 Mo. 274, 96 S.W.2d 369. (3) Respondents' opinion, wherein it is conceded that the plaintiff, an invitee, had knowledge of the unsafe condition which caused her fall and resulting injuries, and yet holds relator liable, is in direct conflict with the previous controlling decisions of this court on a like, analogous or similar state of facts. Stoll v. First Natl. Bank of Independence, 134 S.W.2d 97; Williams v. Kansas City Term. Ry. Co., 288 Mo. 11, 231 S.W. 954; Cluett v. Union E. L. & P. Co., 220 S.W. 865.

Barak T. Mattingly and Douglas H. Jones for respondents.

(1) The opinion of respondents is not in conflict with any of the cases cited by relator. The facts are directly opposite and no contrary ruling is announced by this court in those cases. (a) The opinion cannot be read as conflicting with any decision of this court. There are no decisions of this court which are based upon the same state of facts. There is no diversity of opinion between respondents' opinion and the cases cited by relator. (b) Relator's cases do not hold there is contributory negligence as a matter of law. Duff v. Eichler, 336 Mo. 1164, 82 S.W.2d 881; State ex rel. Elliott's v. Haid, 330 Mo. 959, 51 S.W.2d 1015. (2) Breach of established custom is negligence per se. When defendant recognized dangerous condition, failure to perform duty constitutes negligence. Backman v. Q. O. & K. C. Ry. Co., 310 Mo. 418, 274 S.W. 764. (3) The only other similar case supports respondents' opinion. Hubenschmidt v. Kresge, 115 S.W.2d 211. (4) The Supreme Court has no jurisdiction to quash an opinion of the Court of Appeals which does not by direct expression or necessary inference conflict with any controlling decision of this Supreme Court. State ex rel. Kansas City So. Ry. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915; State ex rel. Baldwin v. Shain, 125 S.W.2d 41; State ex rel. Melbourne Hotel v. Hostetter, 126 S.W.2d 1189; State ex rel. Powell Bros. v. Hostetter, 137 S.W.2d 461.

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

OPINION

DALTON

This is an original proceeding in certiorari, commenced in this court, by which the relator seeks to have quashed an opinion of the St. Louis Court of Appeals in the case of Hazel Bankhead v. First National Bank in St. Louis, 137 S.W.2d 594. The original action was for damages for personal injuries sustained by the plaintiff in said cause on November 26, 1935, when she slipped and fell while descending a stairway in the banking house of defendant, First National Bank in St. Louis, Missouri. A verdict was returned in favor of plaintiff for the sum of $ 3,000, and judgment was entered thereon. Defendant appealed, but the judgment was affirmed by respondents.

In their opinion, respondents stated the issues as follows:

"Counting upon the status of an invitee on the premises, plaintiff charged negligence against defendant upon the theory that the stairway, at the time of her fall upon it, was wet and covered with a slimy and slippery substance which rendered the same dangerous and likely to cause persons using it to slip and fall, and that defendant knew or should have known of such dangerous and unsafe condition long enough prior to the time of plaintiff's injury for it to have remedied the condition, but had negligently failed to do so. The answer was a general denial, coupled with a plea of contributory negligence to the effect that whatever water was upon the steps when plaintiff fell was visible and could have been seen by her if she had looked where she was walking, but that she negligently failed to do so.

"Defendant submits but one point for our consideration, which is the question of whether the court committed error in the refusal of its request for a peremptory instruction at the close of the entire case. . . . Defendant argues for its demurrer upon two grounds, the first, that there was no substantial evidence of negligence on its part; and second, that in any event plaintiff should be adjudged guilty of contributory negligence as a matter of law."

Respondents stated the facts as follows: "Plaintiff's fall occurred on the steps leading down to the first floor from the Olive Street entrance to the bank. This particular entrance has both outer and inner doors, which are separated by a vestibule some four or five feet in depth. One entering the bank through the Olive Street entrance first passes through one of the outer doors which open out upon the sidewalk, crosses the vestibule, and then passes through one of the inner doors which open out upon a landing at the head of the stairway or series of seven marble steps which lead down to the first floor of the bank. Each step is from twelve to fourteen inches in width, and the stairway itself, which is from fourteen to fifteen feet across, is divided into sections by railings, one of which runs along either wall, with two erected at intervals in the center. The steps are of a cream color, and, being made of polished marble, are smooth, with no evidence of wear as yet apparent upon their surface.

"Recognizing the fact that in rainy weather the customers and other persons coming into the bank necessarily bring in a certain amount of water which gets upon the stairs and renders them slippery and dangerous if they are not mopped with regularity, the bank has adopted a practice that in rainy weather it assigns one or more porters to every entrance, whose duty it is to mop the entrances and stairs on an average of once every four or five minutes, depending upon the degree of rainfall and the amount of water being carried in. . . .

"It was a conceded fact that it had been raining off and on throughout the entire morning of the day on which plaintiff's accident occurred.

"Shortly after the noon hour, plaintiff entered the bank through the Olive Street entrance, and started down the east or right-hand section of the stairway, holding on to the rail which ran along the wall. This was her first occasion to use that particular entrance, and while she took casual notice of the flight of steps, she did not observe them closely enough to discover the presence of any water upon them.

"She had reached about the third step from the top when her right foot slipped, causing her to fall in a sitting position, with her left leg doubled underneath her. A couple of the bank's employees helped her to her feet, and it was then she discovered that her 'clothes were wet' with dirty, slimy water, indicative of the fact that the same had been tracked in from the outside and deposited on the steps. . . .

"While defendant's floorman testified that there had been porters at that entrance all during the morning, who had last mopped the steps a matter of from three to five minutes before the time of plaintiff's fall, there was an issue made of this fact by one of plaintiff's witnesses, who customarily sells pencils on Olive Street outside the bank, but at this particular time had come into the bank to get out of the rain, and was standing by one of the radiators near the entrance. According to this witness, he had noticed water on the steps when he first came into the bank; he had been inside 'about an hour' when plaintiff's fall occurred; he had not seen anyone mop the steps; and water had remained upon them during all the time that he was in the bank."

Respondents stated the rule as to liability as follows: "The owner or possessor of premises is liable to an invitee, using due care, for an injury occasioned the invitee by an unsafe condition of the premises which is actually or constructively known to the owner or possessor but not to the invitee, and which the owner or possessor has suffered to exist, but of which the invitee has no knowledge or notice. . . . The true ground of liability on the part of the owner or possessor is his superior knowledge of the peril which exists and of the danger therefrom to one who goes upon his premises at his inducement, expressed or implied."

Respondents then held: "In this case defendant conceded by its own evidence that it had recognized the danger of permitting the stairway to be wet and slippery, and that in order to keep the same in a reasonably safe condition for the use of its customers, it had...