Streicher v. Mercantile Trust Co.

• Citation: 31 S.W.2d 1065
• Decision Date: 13 October 1930
• Docket Number: 28874
• Parties: STREICHER v. MERCANTILE TRUST CO
• Court: United States State Supreme Court of Missouri

31 S.W.2d 1065

STREICHER v. MERCANTILE TRUST CO

No. 28874

Supreme Court of Missouri, Second Division

October 13, 1930

Mark D. Eagleton and Hensley, Allen & Marsalek, all of St. Louis for appellant.

Jones Hocker, Sullivan & Angert and Ralph T. Finley, all of St Louis, for respondent.

OPINION

COOLEY, C.

Appeal from the judgment of the circuit court of the city of St. Louis. Plaintiff sued defendant Mercantile Trust Company and James S. Dowling and Thomas Blong, partners doing business under the firm name of James S. Dowling & Co., for personal injuries. At the close of the evidence the court, by a peremptory instruction in favor of Dowling and Blong, forced plaintiff to a nonsuit as to them. Later plaintiff dismissed the cause as to those defendants. Defendant trust company requested a peremptory instruction directing a verdict in its favor, which was refused, and the cause was submitted to the jury as to that defendant, and a verdict for said defendant was returned. From the judgment thereon against plaintiff and in favor of the defendant Mercantile Trust Company, the plaintiff appeals.

Plaintiff's evidence tended to show the following facts: the trust company had charge and control of a building as trustee under a will. One Friel, connected with its real estate department, was its supervisor of repairs. In June, 1925, the trust company, through Friel, contracted with Dowling & Co. for the painting of the exterior of the building. Friel's authority so to act for the trust company is not questioned. Plaintiff was one of the painters employed by Dowling & Co. on this work, and while so engaged was injured by falling from a second story window, the sash of which he was painting. The window of which the sash formed a part was an oval window located in a semicircular tower opening from an office room.

About a month before plaintiff's injury a Miss Fentwengler, employed in said office, discovered that the window was in a defective condition, such that the window sashes, both lower and upper, could easily be pushed outward so as to be held only by the ropes upon which they were suspended. Sometimes the wind would push out the sashes. This condition was reported and demonstrated to Friel, who thus became possessed of actual knowledge thereof, but nothing was done to remedy it prior to plaintiff's injury.

Plaintiff had been engaged on the painting work five or six days prior to his injury. Before beginning the work, an assistant, at plaintiff's direction, had made an inspection of the building to see 'if everything was all right,' and had reported to plaintiff that everything was all right. Plaintiff had no knowledge or notice of the defective or insecure condition of the sash or window prior to his injury. Neither Friel nor any one else had notified or warned him or his employers or any of the workmen engaged on the work, nor had plaintiff noticed anything about the sash or window to indicate the condition above mentioned. It moved up and down. as a normal sash usually does,' and to the eye appeared to be all right.

At the time of his injury plaintiff was applying the second coat of paint to the sash. In the application of the first coat a ladder had been used, but in applying the second coat it was not practicable to use a ladder, owing to the oval shape of the window and the fact that neatness and nicety of finish were necessary, which could not be effected from a ladder. The customary and proper method of doing second coat work was for the painter to stand on the sill with his body outside the window, steadying himself by holding to the sash with one hand. Plaintiff had finished painting the second coat on about fifty window sashes of the building, doing the work from the window sills in the usual way, as above described, before coming to this one, and, while he was so doing, defendant's inspector had been on the ground from time to time, and had seen him so engaged, and therefore knew he was doing the work in that manner.

Coming to the window in question, plaintiff raised the lower sash, placed his paint pot on the sill, climbed out on the sill, and lowered the upper sash about two feet. Taking hold of the upper part thereof, he reached down to take a dip of paint from the pot, and the sash gave way and pulled out, precipitating plaintiff and window sash to the sidewalk about twenty feet below, and inflicting upon plaintiff severe injuries, for which he sues.

In his petition plaintiff charges defendant trust company with negligence in several respects, viz. that it had been notified of the defective condition of the window sash, and therefore knew, or in the exercise of reasonable care should have known, of its 'defective and dangerous' condition when it contracted with Dowling & Co., and, notwithstanding such knowledge, failed to disclose such condition or to give warning thereof to plaintiff or to Dowling & Co. or their agents and servants, and negligently permitted plaintiff to work upon the building when it knew, or should have known, that the sash was insecure so as to be likely to pull out, and was therefore not reasonably safe, and when it knew, or should have known, that plaintiff, in attempting to use the sash in doing his work, was likely to fall and be injured because of said conditions; and further that it negligently assured the agents and servants of Dowling & Co. that it was safe for them to go upon the window sill in doing the painting.

Defendant company answered by a general denial and a plea of contributory negligence. There was no evidence to support plaintiff's allegation of negligent assurance of safety, and it was withdrawn from the jury by an instruction. It will be seen from the statement of facts that there was evidence tending to support the other allegations of negligence. Respondent's evidence contradicted that of plaintiff on material issues, but that fact presented a question for the jury.

Appellant on this appeal makes but one as signment of error, viz., that 'the court erred in giving the defendant's instruction No. 4.' Said instruction is as follows:

'The Court instructs the jury that, if you find and believe from the evidence in this case that the window sash mentioned in the evidence was reasonably safe for the purpose for which it was constructed and maintained, then there can be no recovery in this case against defendant Mercantile Trust Company, and your verdict must be for that defendant.'

I. Respondent in its brief here urges that appellant's assignment of error is too general to authorize review of error, if any, in instruction No. 4. Respondent concedes that 'it is permissible to turn to appellant's points and authorities for further light on appellant's complaint against the instruction,' but argues that, even so, the error complained of is not specified.

In appellant's formal assignment of errors there is but one assignment, which we have quoted above. In his points and authorities there are five numbered paragraphs, each with citation of authorities. The first asserts, in substance that an employee of an independent contractor, going upon premises under arrangement between his employer and the person in control of the premises to perform work thereon, is an invitee thereon; the second, that the owner or person in control owes to such invitee the same duty to maintain the premises in reasonably safe condition for the doing of such work as he would owe to his own employee; the third, that it is the duty of such owner or person in...