Terry v. Boss Hotels, Inc.

Decision Date13 January 1964
Docket NumberNo. 1,No. 50038,50038,1
Citation376 S.W.2d 239
PartiesLeonard TERRY, Respondent, v. BOSS HOTELS, INC., a Corporation, Appellant
CourtMissouri Supreme Court

Hendren & Andrae, by John E. Burruss, Jr., and Kenneth W. Shrum, Jefferson City, for appellant.

Bond & Dominique, John O. Bond, P. Pierre Dominique, William A. Jolley, Jefferson City, for respondent.

HOUSER, Commissioner.

Action for $40,000 damages for personal injuries brought by Leonard Terry against Boss Hotels, Inc., owner and operator of Missouri Hotel in Jefferson City. There was a jury verdict for defendant. A new trial was granted for error in giving Instruction No. D-4. Defendant has appealed.

Plaintiff, a member of the Optimist Club, attended a dance given by the club in the ballroom of the hotel. The club hired an orchestra and paid the hotel a rental charge for the use of the ballroom. Defendant provided waiters to serve club members and their guests. A hotel employee, who had standing instructions with reference to the preparation of the ballroom floor for dancing, sprinkled Johnson's powdered dance wax out of a shaker. The floor was hard, nonporous terrazzo, polished to a fine glaze. Too much wax was applied to the floor, as a result of which the floor (as described by various witnesses) was unusually, awfully, exceptionally, extremely, slick and slippery. It was 'overslick'--'definitely too slick for comfort'--'entirely too slippery to dance.' People were having a difficult time dancing; 'having a hard time standing up' because of the floor; were complaining about it being too slick. Several people slipped and fell and were seen picking themselves up off the floor. The slippery condition of the floor became the general topic of conversation. Four people fell during the first two or three pieces the orchestra played. Complaint was made to the hotel manager, who was warned that somebody was going to get hurt. After the third dance the manager ordered the floor swept with push brooms, after which wax was piled up around the edges of the dance floor. Later there were complaints that the floor was still too slippery. The manager then had the floor mopped with damp mops. The floor was still too slick, so it was damp-mopped a second time. Approximately ten persons fell on the dance floor between the time the dance started at 9 p. m. and the second damp-mopping. Plaintiff fell and sustained injuries to his left knee and ankle during the fourth dance, after the sweeping of the floor but before the first damp-mopping.

Plaintiff testified that the floor was slick 'to start with' and that during the second dance he had some difficulty. Plaintiff knew the floor was slick; saw several people picking themselves up off the floor prior to his fall; noticed spots 'so bad' he 'tried to dance around certain areas' where there was 'a lot of wax'; testified that there was 'danger of falling * * * after the way they had that wax bunched up'; that 'everybody was sliding and slipping.' He testified by deposition that he could tell there was danger of falling from the way the other people 'were reacting,' from the way his own feet 'were slipping,' and the way his dancing partner was slipping. Plaintiff testified that there were 'gobs' or 'puddles' of wax located along the edge of the floor, next to the tables. When they swept up the wax plaintiff assumed they helped the condition; assumed that they had taken off most of the wax, but as plaintiff and the lady with whom he danced the fourth dance 'started up' he knew there was 'too much wax on there.' Plaintiff and his partner talked about the condition of the floor, and when they found out there was too much wax; that it 'wasn't fit to dance'; that it was 'too slick to dance'; that 'there was still danger of falling,' they decided they would quit dancing and go sit down. According to his dancing partner they were still dancing at the time they slipped and fell; they were no their way back to the table, but still dancing. Another witness for plaintiff saw plaintiff fall. Asked where he fell she testified plaintiff 'was dancing on that side by those tables.' A witness for defendant testified unequivocally that plaintiff was dancing at the time he fell. At the trial plaintiff testified that they had stopped dancing and were walking at the time they fell, but also testified that after his dancing partner said 'It is slippery. We better sit down,' he agreed with her and that they started to dance back towards the table and were about fifteen feet away from their table when they fell. He testified 'We turned around to dance toward the tables. Mrs. Rusk slipped and I was trying to hold onto her, at the same time I slid underneath her, and she fell on top of me.' Further: 'I didn't want to take any chances, so I tried to maneuver Mrs. Rusk back to the tables through this wax, so we could avoid stepping in it or dancing in it * * * [g]uiding her off the dance floor * * *.'

'Q. How did you get over there [to the side of the tables], sir? A. We danced up that far.

'Q. You danced over there, sir? A. That's right. We started out right where we were sitting, danced over in front of the band, right straight across the floor, going south, danced about halfway across from our tables--I would say fifteen or twenty feet from where we sat down, turned around and headed back for it. That is where the accident happened.

'Q. Then you decided it was too slick for you to dance, you started dancing back over toward your table, is that right, sir? A. Danced over to the side.

'Q. Over to that side of the room, is that right, sir? A. That's right.

'Q. Then you were dancing after you had decided it was too slick? A. Well, we had to dance to find out, that is why we decided to sit down, when we tried a few steps and found it too slick, and headed back for the table. * * * We wanted to get out of the immediate dance floor area, so we danced over to the side, over toward the wall, right close to the entrance. * * *

'Q. In other words, Mr. Terry, when you decided that it was too slick to dance any longer, you danced in a northerly direction over toward the north wall of the ballroom; is that right? A. Right.'

In his deposition plaintiff testified 'That's right' in answer to the question 'You were on your way back, dancing to the table, when you had your accident, is that right?'

Instruction No. D-4, for the giving of which a new trial was granted, follows:

'The Court instructs the jury that under the law plaintiff, Leonard Terry, was required to exercise ordinary care for his own safety while attending and participating in the dance sponsored by the Jefferson City Optimist Club on December 9, 1960, at the Missouri Hotel.

'Therefore, if you find and believe from the evidence that plaintiff, Leonard Terry, knew or should have known that the floor of the ballroom of said hotel was slippery and that there was danger of falling while dancing thereon, if you so find; and that thereafter plaintiff, Leonard Terry, danced and continued to dance on said ballroom floor, if you so find; and that in so doing plaintiff, Leonard Terry, failed to exercise ordinary care for his own safety and that such failure, if any, directly caused or contributed to cause his injuries, if any, then, your verdict must be in favor of the defendant and against the plaintiff, and this is true even though you find and believe from the evidence that the defendant was guilty of negligence.'

Plaintiff attacks D-4 on three grounds.

First, it is objected that instead of directing a verdict for defendant if plaintiff knew or should have known that the ballroom floor was slippery and there was danger of falling while dancing thereon D-4 should have required a finding that plaintiff knew or by the exercise of ordinary care should have known that there were excessive collections of wax upon the floor, so as to cause the floor to be dangerous and unsafe for dancing; that D-4 is confusing because the jury might have found the floor somewhat slippery but not slippery enough for persons using ordinary care to refuse to use the floor. This objection is not well taken. The finding required by D-4 is tantamount to the substitute finding suggested by plaintiff. The words 'and that there was danger of falling while dancing thereon, if you so find,' save it from criticism that it was confusing on the ground assigned.

Next, it is objected that D-4 places an absolute duty on plaintiff to discover that the floor was slippery, by directing a verdict based on a finding that plaintiff 'should have known' of the slipperiness and danger, whereas plaintiff was only obligated to use ordinary care to discover that the floor had excessive amounts of wax applied to it in time to have avoided the accident. Plaintiff testified positively that the floor was slick from the start; that he saw several people picking themselves up off the floor prior to his fall; that he saw accumulations of wax and knew there was danger of falling 'after the way they had that wax bunched up.' This is a concession of actual, personal knowledge of the fact that there were excessive accumulations of wax on the floor and that the floor was dangerous for dancing. In this situation the submission of constructive knowledge, in whatever form, is not essentially important for it is obvious that no jury would have considered whether plaintiff could, should or in the exercise of ordinary care would have discovered the condition, where plaintiff himself conceded that he did make the discovery and did appreciate the danger. If the inclusion of the language objected to may be said to have constituted error it was harmless. See Gould v. Chicago, B. & Q. R. Co., 315 Mo. 713, 290 S.W. 135, Keynote 4, pp. 138, 139.

Plaintiff objects, however, that his positive testimony as to knowledge of the accumulations of wax and of the danger related to...

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