Stoll v. First Nat. Bank

• Decision Date: 13 December 1939
• Docket Number: 36098
• Citation: 134 S.W.2d 97,345 Mo. 582
• Parties: Eliza Stoll v. First National Bank of Independence, Appellant
• Court: Missouri Supreme Court

134 S.W.2d 97

345 Mo. 582

Eliza Stoll v. First National Bank of Independence, Appellant

No. 36098

Supreme Court of Missouri

December 13, 1939

Appeal from Jackson Circuit Court; Hon. Thomas E. Walsh Acting Judge.

Reversed.

Ryland Stinson, Mag & Thomson and Wright Conrad for appellant.

(1) The defendant was guilty of no negligence, as it appears from plaintiff's own testimony that plaintiff had as full knowledge of the condition of the floor and stairs in question as did the defendant. Kelly v. Benas, 217 Mo. 1, 116 S.W. 557; Vogt v. Wurmb, 318 Mo. 417, 300 S.W. 278; Main v. Lehman, 295 Mo. 174, 243 S.W. 91; Mullen v. Sensenbrenner, 260 S.W. 982; Ilgenfritz v. Mo. P. & L. Co., 340 Mo. 648, 101 S.W.2d 723; Asbury v. Fidelity Natl. Bank & Trust Co., 231 Mo.App. 437, 100 S.W.2d 946; Paubel v Hitz, 96 S.W.2d 369; State ex rel. Golloday v. Shain, 341 Mo. 889, 110 S.W.2d 719; Cash v. Sonken-Galamba Co., 17 S.W.2d 927; Vairo v. Vairo, 99 S.W.2d 133; Lapin v. St. Louis Natl. League Ball Club, 33 S.W.2d 1025; Stoll v. First Natl. Bank of Independence, 132 S.W.2d 676. (a) The negligence alleged and sought to be proved by the plaintiff was not the proximate cause of the fall and injury to plaintiff. State ex rel. Boeving v. Cox, 310 Mo. 367, 276 S.W. 869; Coble v. St. L.-S. F. Ry. Co., 38 S.W.2d 1031; Carle v. Akin, 87 S.W.2d 406; Allen v. Wilkerson, 87 S.W.2d 1056. (2) The court erred in giving plaintiff's Instruction 1. (a) Under plaintiff's own testimony the issue of defendant's negligence should not have been submitted to the jury. (b) The instruction failed to instruct the jury that plaintiff could not recover if she knew the conditions existing at the place where she fell prior to her fall. (3) The court erred in refusing defendant's requested Instruction C. Defendant's offered Instruction C correctly stated the law applicable to this case in view of plaintiff's testimony that she knew the conditions at the place where she fell prior to her fall. (4) The court erred in giving plaintiff's Instruction 4. Plaintiff's Instruction 4 assumes that the floor where plaintiff fell was slick and slippery, which was an essential disputed issue in the case. Salmon v. Trenton, 21 Mo.App. 182; Gleason v. Texas Co., 46 S.W.2d 546; Boyer v. General Oil Products, Inc., 78 S.W.2d 450; Daniel v. Artesian Ice & Cold Storage Co., 45 S.W.2d 548. (5) The verdict is excessive. Morris v. Portland Cement Co., 323 Mo. 307, 19 S.W.2d 865; Dorman v. East St. Louis Ry. Co., 335 Mo. 1082, 75 S.W.2d 854; Mrazek v. Terminal Assn., of St. Louis, 341 Mo. 1054, 111 S.W.2d 26; Brucker v. Gambaro, 9 S.W.2d 918; Osby v. Tarlton, 336 Mo. 1240, 85 S.W.2d 27.

Elmer Ahmann, Cowgill & Popham and Guy Green for respondent.

The court properly refused defendant's peremptory instruction in the nature of a demurrer to the evidence at the close of all the evidence. The duty of defendant to plaintiff herein is not governed by the law applying to an ordinary business invitee but by the law applying to one who has paid a consideration for the use of the premises. Clooney v. Wells, 252 S.W. 72; Kroeker v. Stecken, 31 S.W.2d 229; Burnison v. Souders, 35 S.W.2d 619; Brewer v. Silverstein, 64 S.W.2d 289; Smiley v. Bergmore Realty Co., 73 S.W.2d 836; Morelock v. DeGraw, 112 S.W.2d 126; People ex rel. Glynn v. Mercantile Safe Deposit Co., 143 N.Y.S. 849; Carples v. Cumberland Coal & Iron Co., 240 N.Y. 187, 148 N.E. 185. There was sufficient evidence that the floor was unusually slick, slippery and dangerous and not reasonably safe for the ordinary use of persons while exercising ordinary care. Clooney v. Wells, 252 S.W. 72; Mick v. Thompson Co., 77 S.W.2d 470; Asbury v. Fidelity Natl. Bank & Trust Co., 100 S.W.2d 946; Frazier v. Mace Ryer Co., 114 S.W.2d 150. It is not claimed that plaintiff was guilty of contributory negligence as a matter of law, and the evidence clearly made a jury issue. Clooney v. Wells, 252 S.W. 72; Burnison v. Souders, 35 S.W.2d 619; Brewer v. Silverstein, 64 S.W.2d 289; Smiley v. Bergmore Realty Co., 73 S.W.2d 836.

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

OPINION

DALTON

This is an action for damages for personal injuries sustained by plaintiff as a result of a fall on defendant's premises. Plaintiff recovered judgment for $ 12,500 and defendant has appealed. Appellant has assigned various errors. However, because of the view we take of this case, it is necessary to consider only one, to-wit, the refusal of the trial court to give appellant's peremptory instruction, in the nature of a demurrer to the evidence, as offered at the close of the whole case.

Appellant was engaged in the general banking business at Independence Missouri. It owned, maintained and operated the building in which it carried on its banking business. The building was constructed about 1930. The main entrance to the lobby of the bank was through a vestibule and up three steps, the top step being on the level of the lobby floor. The vestibule floor was of smooth dark marble, with large squares of white marble. The first two steps were of white Tennessee marble. The edge of the third or top step, was of dark marble (York Fossil), but eight inches back from the edge of the step there were squares of white marble in the lobby floor. Respondent had been a customer of the bank both before and after it moved into its new building. On June 3, 1936, about 12:30 P. M. after a visit to the bank, she came out through the main lobby and approached the stairs. At a point on the lobby floor near the edge of the top step her feet slipped from under her, and she fell down the steps to the vestibule floor and was severely injured.

Appellant contends that under the pleadings and evidence respondent was a customer in appellant's bank and, as such, an invitee of the bank; that it owed her only the duty a proprietor of a business owes to those coming on his premises by invitation; and that there is no liability for injuries from dangers that are obvious, or as well known to the person injured as to the owner or occupant.

Respondent contends that she was "a tenant of a safety deposit box for which she paid a consideration;" that she "is in the same position as a tenant living on rented premises reached by a common passageway maintained by the landlord;" that she fell in a common passageway provided for use of "safety deposit box tenants;" that appellant was required to exercise ordinary care to keep the common passageway in a reasonably safe condition for use; and "that, even though the condition causing respondent's fall was an obvious one, and even though her knowledge of such condition was equal to that of defendant (appellant), she is entitled to recover in the absence of contributory negligence."

We must review this cause upon the theory upon which it was tried below. It cannot be considered an appeal upon any other theory. "It is elementary that a cause must be heard in the appellate court upon the same theory as that upon which it was tried." [Snyder v. American Car & Foundry Co., 322 Mo. 147, 14 S.W.2d 603, 606; Raming v. Metropolitan Street Railway Co., 157 Mo. 477, 57 S.W. 268; Benz v. Powell, 338 Mo. 1032, 1037, 93 S.W.2d 877, 879.] The petition alleged that respondent entered the building during business hours and "incident to the use of a safety deposit box under lease from defendant in its premises," and for the purpose of transacting business with defendant; and that on attempting to leave the building she slipped on the top step of a stairway used by the customers and the general public as a means of ingress and egress to the bank. Respondent testified that on the date of her injuries she went to the bank by invitation, as she would call it, as one of its customers, and that she was one of "its customers." She further testified that she had a safety deposit box which she had rented about a year before and that the particular trip to the bank was made to get an insurance policy out of the safety deposit box. Respondent's instructions, however, only required the jury to find that "on and prior to June 3, 1936, plaintiff was a customer of defendant in its said bank," and was "using the premises and attempting to use said steps." The existence of a safety deposit box, respondent's rental or use of it, or the use of a common passageway for "safety deposit box tenants" is not mentioned or referred to in any instruction. No request was made for the jury to make any finding as to such facts. The sole and only relationship of the parties which was submitted to the jury, and from which the basis of appellant's liability, if any, to respondent was to be determined, was that "plaintiff was a customer of defendant in its said bank . . . using the premises." This relationship is referred to as that of owner or occupier to invitee. It is unnecessary, therefore, for us to determine whether or not the liability would have been different if the relationship of landlord and tenant applied to this case. The cause was not tried or submitted to the jury on that theory.

The petition states that the marble steps were "excessively unusually, extraordinarily and highly slick and slippery and dangerous for the ordinary use of guests and customers" of defendant and the public; that persons using the steps were extremely likely to slip thereon; that defendant negligently failed to roughen the steps, provide a handrail, or cover the steps to prevent same from being slick; that defendant knew or by the use of due care would have known of the condition of said steps and long enough prior to plaintiff's injuries, "by the exercise of due care on its part to have remedied said dangers and made said steps and the use thereof reasonably safe, or warned plaintiff and those using said steps of such dangers, said...