Stevenson v. Kansas City Southern Ry. Co.

• Decision Date: 12 December 1941
• Docket Number: No. 37677.,37677.
• Citation: 159 S.W.2d 260
• Court: Missouri Supreme Court
• Parties: SAM STEVENSON, Appellant, v. KANSAS CITY SOUTHERN RAILWAY COMPANY.

159 S.W.2d 260

SAM STEVENSON, Appellant, v. KANSAS CITY SOUTHERN RAILWAY COMPANY.

No. 37677.

Supreme Court of Missouri.

Division One, December 12, 1941.

Rehearing Denied, February 26, 1942.

Appeal from Jackson Circuit Court. — Hon. Albert A. Ridge, Judge.

AFFIRMED.

Frank Benanti, Ben Mossel and Roy W. Rucker for appellant.

(1) An invitee is one who goes upon the premises of the owner in connection with the business of the owner which is there being carried on. Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1. (2) An employee of a contractor who is working for the owner is an invitee. Graham v. Brandt Shoe Co., 165 Mo. App. 361, 147 S.W. 365. (3) It is the duty of the owner to use ordinary care to prevent injury to an invitee. Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1; Gilliland v. Bondurant, 332 Mo. 881, 59 S.W. (2d) 881; Kennedy v. Phillips, 319 Mo. 573, 5 S.W. (2d) 33. (4) The building collapsed as a result of the negligence of defendant in preparing faulty plans, and plaintiff, having been injured as a result of the collapse, is entitled to recover. Mallory v. Louisiana Ice & Supply Co., 6 S.W. (2d) 617, 627.

Cyrus Crane, Winston H. Woodson and James F. Walsh for respondent.

(1) The undisputed evidence conclusively shows that plaintiff was not an invitee as to defendant but was either a trespasser or a mere licensee. 9 C.J., topic, "Building and Construction Contracts," p. 704, Sec. 27; Herry v. Benoit (Tex.), 70 S.W. 359; Wilkey v. Rouse Const. Co. (Spg. Ct. of App.), 28 S.W. (2d) 674, l.c. 675; Leech v. Armstrong (S. Ct. Nev.), 283 Pac. 396, l.c. 397; 45 C.J., topic, "Negligence," pp. 822-3, Sec. 232; Flanigan v. Kansas City So. Ry. Co., 276 Mo. 656, 208 S.W. 441; Shuck v. Security Realty Co., 201 S.W. 559; Gilliland v. Bondurant, 332 Mo. 881, 59 S.W. (2d) 679. (2) Plaintiff's petition fails to state a cause of action in that it does not allege that plaintiff was defendant's invitee. Carter v. Butler, 264 Mo. 306, 174 S.W. 399.

HYDE, C.

This is an action for damages for personal injuries. Plaintiff had a verdict for $12,500. The court sustained defendant's motion for new trial on the ground "that the court erred in overruling defendant's demurrer at the close of all the evidence, and in denying the motion of defendant at the close of all the evidence for a directed verdict." Plaintiff has appealed from this order.

Plaintiff was injured by the collapse of a building, under construction by a contractor to whom defendant had let this work. The case was submitted upon defendant's negligence in preparing and furnishing plans and specifications, for the building, "defective in that the piers and walls which were specified were so designed that they did not and could not stand under the tension or side strain to which they were subjected." Defendant contends that there was no evidence of such negligence, and had evidence tending to show negligence in construction by the contractor. Defendant further contends that plaintiff cannot recover because he was (under the most favorable view of the evidence) a bare licensee (defendant contends he was a trespasser) to whom defendant owed no duty concerning the negligence charged. Plaintiff's claim is that he was an invitee. Therefore, the matter of plaintiff's status is decisive on the demurrer to the evidence.

Plaintiff's evidence on this feature of the case showed that defendant had let a contract, to the Fogel Construction Company (hereinafter called the contractor), for building a freight depot in Kansas City. One provision in this contract was:

"6. Neither this agreement nor any interest herein shall be assigned by the Contractor, nor shall any part of said work be sublet by it, without the written consent of the Railway Company."

The specifications further provided:

"7. The Contractor is to have full charge of his part of the work on building until completed, and he will be held responsible for all damage to his work, no matter by whom caused."

Plaintiff was a steel painter. Early in February, 1940, he went to the contractor to apply for work. The contractor told him that they intended to sublet the painting to Raymond Schmidt. It was shown that on February 21, 1940, Schmidt made a written proposal "to furnish all labor, material, equipment and insurance necessary to complete the painting ... according to plans and specifications" at the fixed price. This proposal was accepted by the contractor on February 22nd, but this subcontract was never approved by defendant. There was no evidence to show that defendant was ever asked to approve it or had any information about it, prior to the collapse of the building on March 6, 1940. Plaintiff did not know Schmidt, but was given his telephone number by the contractor. Thereafter, plaintiff called Schmidt by telephone and was told by Schmidt that he had been given a favorable reference by the contractor and that he would give him the job. Schmidt said: "As soon as the job is ready I want you to work for me." Plaintiff saw Schmidt, for the first and only time, on the street about the middle of February and talked to him again about the job. Schmidt said "it would be ready pretty soon." He offered plaintiff another job on a storeroom downtown, but plaintiff said "no, I will wait for the other job." Schmidt said "you keep in touch with me either at home or down at the job." Plaintiff talked to Schmidt by telephone the latter part of February, which was the last time he talked to him. Schmidt said "the job will be ready in a short time, you keep in touch with me on the job... . You come down on the job whenever the work is ready to start."

On March 6th, plaintiff went to the Kansas City Structural Steel Company, which had the subcontract for the steel work. He was told there that they would be ready for him (to start painting) in a short time. It was suggested that he might go down to the job and see about it. He went to the building that afternoon. He saw the foreman for the Steel Company and told him he was looking for Schmidt. Plaintiff was told that Schmidt had some men working at the Loose-Wiles building across the street. The Steel Company foreman told him "we are figuring on getting done in a couple of days. You can start any time. We will get out of your way." Plaintiff also saw the superintendent for the contractor (he did not know his name but said a City Building Inspector there told him he was the superintendent) who said: "I understand you are going to work here." Plaintiff said: "Yes, as soon as you get ready for us." He said: "They are ready now." Plaintiff also said to the contractor's superintendent: "Is the woodwork going to be painted," and he said, "no, just the steel only." Plaintiff went over to the Loose-Wiles building to see Schmidt, but, on inquiry of his painters working there, learned that he was not there. After plaintiff failed to find Schmidt he came back to the building and went in to "look around, see how much work had to be done there." Plaintiff said: "I figured out how long a panel was and the easiest way for me to get the painting done and the quickest and I stood there four or five minutes and figured out the needle beams and the end planks and ladders." While plaintiff was standing in the building, it collapsed and he was injured.

Plaintiff said that he worked by the day and understood Schmidt would pay him, on that basis, according to the Union scale, although there was no definite agreement about how he would work or what he would be paid. Schmidt never did call plaintiff or tell him the job was ready. Plaintiff never talked to anyone connected with defendant about the building or the painting. Plaintiff's understanding about his work was that he "was going to do it for Mr. Schmidt," and that his pay would come from Schmidt.

[1, 2] The rule in this state is that "the owner or occupier of premises lies under no duty to protect those from injury who go upon the premises as volunteers, or merely with his express or tacit permission, from motives of curiosity or private convenience, in no way connected with business or other relations with the owner or occupier;" but that "a bare licensee (barring wantonness or some form of intentional wrong or active negligence by the owner or occupier) takes the premises as he finds them." However, this is not the rule "when the owner invites the use of his premises for purposes connected with his benefit, pleasure and convenience." In that situation, our rule is "that a licensee, who goes upon the premises of another by that other's invitation, and for that other's purposes, is no longer a bare licensee," but "becomes an invitee, and the duty to take ordinary care to prevent his injury is at once raised, and for the breach of that duty an action lies." [Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1.] We have also said that "the status of an invitee will not be accorded by permission to enter on or use the property, in the absence of any real benefit to the owner." [Gilliland v. Bondurant, 332 Mo. 881, 59 S.W. (2d) 679, l.c. 688; see also Savage v. C., R.I. & P.R. Co., 328 Mo 44, 40 S.W. (2d) 628; Liability of a Possessor of Land in Missouri to Persons Injured While on the Land — McCleary, 1 Mo. Law Rev. 45, l.c. 59.] Thus, the real test of the status of invitee (to whom the owner has the duty to take ordinary care to prevent his injury) is the purpose of his visit. [See 20 R.C.L. 69, sec. 60; 45 C.J. 812, sec. 221.] One cannot be declared the invitee of the person sought to be held liable, for failure to exercise due care to prevent his injury, unless he was there for some purpose of real benefit or interest to such person.

The American Law Institute Restatement of Torts, although using different terminology, makes its classification upon the same basis. Section 332 defines a "business visitor" as "a person who is invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly...