Stoeppelman v. Hays-Fendler Const. Co.

• Decision Date: 17 December 1968
• Docket Number: HAYS-FENDLER,No. 32967,32967
• Citation: 437 S.W.2d 143
• Parties: Harold J. STOEPPELMAN, Plaintiff-Respondent, v.CONSTRUCTION COMPANY, a corporation, and Traroloc Investment Company, Inc., a corporation, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 143

437 S.W.2d 143

Harold J. STOEPPELMAN, Plaintiff-Respondent, v. HAYS-FENDLER CONSTRUCTION COMPANY, a corporation, and Traroloc Investment Company, Inc., a corporation Defendants-Appellants.

No. 32967.

St. Louis Court of Appeals, Missouri.

Dec. 17, 1968.

Motion for Rehearing or to Transfer to the Supreme Court

Denied Jan. 23, 1969.

Application for Transfer Denied March 10, 1969.

Robertson, DeVoto & Wieland, Morton K. Lange, St. Louis, for defendants-appellants.

Murphy, Roche & Schlapprizzi, Byron A. Roche, St. Louis, for plaintiff-respondent.

SAMUEL E. SEMPLE, Special Judge.

Plaintiff sued for damages for personal injuries sustained when he fell on stepping into an excavation along the wall of a new addition being constructed to a building in which plaintiff worked. The defendants were the owner of the premises and the contractor performing the construction work. Plaintiff obtained a verdict for $10,000 against both defendants. The defendants appeal from the judgment rendered on the verdict.

The plaintiff was injured about 11:00 P.M., July 13, 1962, as he was leaving the building occupied by his employer, the Color-Art Printing Company, and owned by defendant Traroloc Investment Company, Inc. The building, located at 10324 Highway #66 on the south side of the street in St. Louis County, Missouri was a two story structure with a single story wing to the rear which did not extend entirely across the rear of the two story portion. On July 3, 1962, defendant Traroloc contracted with defendant Hays-Fendler Construction Company to build an addition to the building. This addition was to be L-shaped enlarging the one story wing at the rear by extending the wing west to the full width of the two story structure. A driveway ran along the west side of the building to a parking lot located at the rear of the premises.

Plaintiff's employer, Color-Art Printing Company, as a tenant in the building occupied all of the first floor of the two story structure, part of the second floor and all of the one story wing to the rear called the bindery. There were two or possibly three other tenants in the building at the time of the occurrence. The employees of Color-Art Printing Company used the door into the bindery which was located on the west wall of the bindery department. This was a double door approximately eight feet wide by eight feet high. This bindery door had been used by some of the Color-Art employees during the time the construction work was in progress, was also used to receive delivery of materials, by customers using it to go in and have paper cut and by other tenants in the building.

At the time of the incident here involved the construction work on the addition had progressed to where the west wall was being erected. A steel door frame was propped up directly opposite and west of the double door of the bindery. This door frame was propped up by timbers and a two by four was placed on a couple of concrete blocks and wedged between the sides of the frame to hold the sides apart. This two by four was about eight inches above the ground surface inside the door frame. This area between the bindery door and the door frame for the new wall was covered with white chat. There was no excavation inside the door frame. On the outside of the door frame was an open trench approximately 18 to 20 inches wide and three feet deep. This excavation having been made for the footings to be poured and had never been filled up.

Plaintiff on the date in question worked with his assistant, Ervin Toenjes, in his office in the building. Two other employees of the company, McNabb and Lorenz, were working that night. About 11:00 P.M., the plaintiff and the other men were ready to leave. The men locked up the building and went to the bindery where Toenjes told the other men to go ahead while he turned out the lights. Plaintiff stepped through the old bindery door into the area of new construction ahead of McNabb and Lorenz. He walked over to the new doorway and stepped over the two by four at the bottom of the door frame into the excavation for footings and fell. There were no warning lights or barricades at the excavation. Plaintiff generally knew that the construction was going on and knew that there had been excavation for footings, however, he had not used this bindery door at any time during the construction work and did not know that the ditch was still there when he stepped out of the doorway.

There was some question under the evidence as to whether Toenjes had turned out the lights in the bindery when plaintiff stepped out the door, however, there was evidence that even with the bindery lights on the excavation was in the shadow and not visible from inside the doorway.

Defendants filed a joint motion for a directed verdict at close of plaintiff's evidence which was overruled. The defendants stood on their motion and did not put on any evidence.

Defendants first complain that plaintiff failed to make a submissible case of negligence because plaintiff was no more than a bare lecensee and as such was required to take the premises as he found them. Defendants argue the place where plaintiff was injured was not leased to plaintiff's employer and was not to be used by plaintiff's employer during the time of construction as the defendant owner of the premises was in control of that part of the property. Citing Porchey v. Kelling, 353 Mo. 1034, 185 S.W.2d 820, 822. Defendants further argue that plaintiff was a licensee because he went out of the door in the new construction for his own convenience and the place where he fell was outside the bounds of any invitation he may have had to be on the premises. Citing Gruetzemacher v. Billings, Mo., 348 S.W.2d 952, 958. Defendants further argue that even if plaintiff was an invitee he is still no entitled to recover because the danger of injury due to the excavation on the outside of the doorway was as well known to plaintiff as to the defendants. Citing Sherman v. Alexander & Sons, Mo.App., 108 S.W.2d 616; Ecker v. Big Bend Bank, Mo.App., 407 S.W.2d 45, 47; Wilburn v. Southwestern Bell Telephone Co., Mo.App., 382 S.W.2d 49, 53.

Defendants' argument and the cases cited deal with rules respecting the duties of an owner or occupier of premises to persons classified as bare licensees or invitees. These rules however do not apply where the relationship of landlord and tenant obtains. In such cases the required standard of care to be exercised by the landlord toward a tenant and those standing in his right, though defined as the exercise of ordinary care, afford greater protection in that actionable negligence may exist even though the injured party may be aware of the defect and its dangerous potentialities. O'Neill v. Sherrill, Mo.App., 254 S.W.2d 263, 267.

It should be noted that there are two defendants involved here. The Traroloc Investment Company, the owner of the premises, and the Hays-Fendler Construction Company, employed by the owner to construct the new addition to the existing building. With respect to defendant Traroloc, the plaintiff's theory of liability is not based on whether plaintiff was a licensee or an invitee. The plaintiff apparently relied on the rules as to liability where the relationship of landlord and tenant exists.

'A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor's control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.' 2 Restatement of Torts, § 360, p. 250; Zacher v. Missouri Real Estate & Ins. Agency, Inc., Mo., 393 SW.2d 446, 448; Rawson v. Ellerbrake, Mo.App., 423 S.W.2d 14, 16.

Viewing the evidence in the light most favorable to the plaintiff it appears that plaintiff did make a submissible case with respect to defendant Traroloc. There was undisputed evidence that plaintiff was an employee of Color-Art Printing Company, one of the tenants on the premises owned by defendant Traroloc. It was also undisputed that defendant Traroloc was exercising control over the portion of the property where plaintiff was injured in having the new addition constructed. It was further undisputed that customers of Color-Art used the doorway in question to pick up orders and employees of Color-Art Printing Company and other tenants in the building used this doorway as a regular means of exit and entrance into the building in going to and from the driveway and parking lot at the rear of the building during the time the construction work was going on. Under these circumstances it appears that defendant Traroloc was on notice of this doorway being used by tenants, employees of tenants and customers of tenants. There was no direct evidence or legitimate inference that the owner Traroloc had denied or restricted the use of this part of the premises in any way to its tenants, their employees and customers. It is concluded that defendant Traroloc maintained control over this portion of the premises and was under a duty to use ordinary care to keep the place in a reasonably safe condition for plaintiff and other employees of tenants to use in entering or leaving the bindery by the west door thereof. Taylor v. Hitt, Mo.App., 342 S.W.2d 489, 493.

Defendants also argue that plaintiff had the same knowledge of the condition at this doorway that defendant Traroloc had. While it is true that there was evidence that plaintiff knew that the addition was being constructed and knew that there had been an excavation for footings there was direct evidence that plaintiff had no knowledge that on the outside of the foundation a...