Vogt v. Wurmb

• Decision Date: 07 December 1927
• Docket Number: 26320
• Parties: Ilma Vogt, Appellant, v. Ida H. Wurmb, Executrix of Theodore H. Wurmb, William Bartels, Doing Business as Bartels & Sons, Painters, and August Hoelscher and August Hoelscher, Jr., Doing Business as Red Wing Market
• Court: Missouri Supreme Court

300 S.W. 278

318 Mo. 471

Ilma Vogt, Appellant, v. Ida H. Wurmb, Executrix of Theodore H. Wurmb, William Bartels, Doing Business as Bartels & Sons, Painters, and August Hoelscher and August Hoelscher, Jr., Doing Business as Red Wing Market

No. 26320

Supreme Court of Missouri

December 7, 1927

Appeal from Circuit Court of City of St. Louis; Hon. William A Taylor, Judge.

Affirmed.

Douglas H. Jones for appellant.

(1) In passing upon the demurrer to the evidence it is the duty of the court to accept as true all evidence in favor of plaintiff and all inferences in plaintiff's favor which may, with any degree of propriety, be drawn therefrom; and the court cannot draw inferences in favor of defendant to counterbalance or overthrow inferences in plaintiff's favor. Schlueter v. Ry. Co., 296 S.W. 105; La Lone v. St. Louis Merchants Bridge, 293 S.W. 379; Rose v. Railroad, 289 S.W. 913; Kennedy v Quarry Co., 291 S.W. 475; Troll v. Drayage Co., 254 Mo. 332; Buesching v. Gas Light Co., 73 Mo. 219; Turner v. Anderson, 260 Mo. 1; Burton v Holman, 288 Mo. 70; Sayre v. Princeton University, 192 Mo. 95; Whiteacre v. Railroad, 252 Mo. 438; Knapp v. Trust Co., 199 Mo. 640. (2) The court can sustain a demurrer only when the evidence and the inferences to be drawn therefrom considered in the light of the foregoing rule, show conclusively that plaintiff has no case. Scherer v. Bryant, 273 Mo. 602; Gratiot v. Railroad, 116 Mo. 466; Steffens v. Fisher, 161 Mo.App. 393; Troll v. Drayage Co., 254 Mo. 332. (3) Placing of orange wood slips on painted step without fastening same, and permitting them to remain, was negligence. Taylor v. Mo. Pac. Ry. Co., 279 S.W. 115; Eaton v. Wallace, 287 S.W. 614; Busby v. Tel. Co., 287 S.W. 437; McGinley v. Trust Co., 168 Mo. 257; Roman v. King, 233 S.W. 161; Fellhauer v. St. Louis, 178 Mo. 635; Williams v. Terminal Ry., 288 Mo. 11; Turner v. Ryan, 229 S.W. 809; Hudson v. Union Elec. Co., 234 S.W. 869. (4) It was the duty of the tenant to exercise ordinary care to keep premises in a reasonably safe condition for invitees. 29 Cyc. 453-455; 24 Cyc. 1125; Welch v. McAllister, 15 Mo.App. 493; Falder v. Nugents, 251 S.W. 138. (5) It is the duty of the landlord, where he undertakes to repair, to do so in a reasonably safe manner. 24 Cyc. 1116; Little v. McAderas, 38 Mo.App. 187; Finer v. Nichols, 175 Mo.App. 555. Which duty extends to invitees of tenant. Bender v. Weber, 250 Mo. 551. (6) The landlord could not delegate such work to an independent contractor. 24 Cyc. 1117; Dorse v. Fisher, 1 Ohio Dec. 163; 26 Cyc. 1562; Wiggins v. St. Louis, 135 Mo. 558; Eberson v. Continental, 118 Mo.App. 72; Vollrath v. Stevens, 199 Mo.App. 13; Salmon v. Kansas City, 241 Mo. 63; Norner v. Nicholson, 56 Mo. 235; Dillon v. Hunt, 105 Mo. 161; Crenshaw v. Ullman, 113 Mo. 640; Loth v. Theatre Co., 197 Mo. 329. The painter was the servant and agent of the landlord and tenant, and the rule of respondeat superior applies. Porter v. Withers Estate Co., 201 Mo.App. 27; Gayle v. Car & Fdy. Co., 177 Mo. 427; Perry v. Ford, 17 Mo.App. 212; O'Hara v. Laclede Gas Co., 244 Mo. 395.

Jones, Hocker, Sullivan & Angert and Willard A. McCaleb for respondent, Theodore H. Wurmb.

The court correctly ruled the instruction in the nature of a demurrer to the evidence. (1) William Bartels was an independent contractor. The work was done under a contract for a stipulated price without being subject to the direction or control of the landlord, Wurmb. Fink v. Furnace Co., 82 Mo. 276; Crenshaw v. Ullman, 113 Mo. 638; Schroer v. Brooks, 204 Mo.App. 582; Jackson v. Butler, 249 Mo. 342; Flori v. Dolph, 192 S.W. 949. (2) The evidence presented no question for the jury. There was no conflict in the evidence as to the controlling terms of the contract between Bartels and Wurmb and the rules of law in this State required the court to declare the effect of the contract as a matter of law. Kipp v. Oyster, 133 Mo.App. 711; Gayle v. Mo. Car & Fdy. Co., 117 Mo. 427; Long v. Moon, 107 Mo. 334. (3) The premises in question were under lease to third parties and the landlord therefore owed no duty to keep them safe for invitees of the tenant. Bender v. Weber, 250 Mo. 551; Ward v. Fagin, 101 Mo. 669.

OPINION

Ragland, J.

In this action plaintiff seeks to recover $ 15,000 as damages for personal injuries sustained through the alleged negligence of the defendants.

On the 19th day of August, 1922, the defendants, Hoelschers, were, and for some time prior thereto had been, conducting a meat and vegetable market in a two-story brick building in the city of St. Louis, known as 4005 West Florissant Avenue. The building was owned by Theodore H. Wurmb and the Hoelschers were his tenants. In order to enter the market from the street it was necessary to go up a flight of four steps. These steps were of concrete, in good condition, without a break or crack in them, and there was a hand-rail on each side. The treads were four and a half feet long and fourteen and a half inches wide; the risers were eight inches in height. A day or two prior to the date mentioned Wurmb had employed defendant Bartels to paint the front of the building, including the foundation and the concrete steps. Bartels painted the steps last and when he had finished he placed a board on each step to protect the paint until it had dried, the steps being the only means of entering or leaving the market available to customers, who were coming and going all the time. The boards were furnished by one of the Hoelschers. They were taken from a box in which oranges had been shipped. They were approximately two feet in length and from a quarter to a half inch in thickness. Their widths varied from six to eight inches. One of them was placed midway between the ends of each step; all of them were sound and lay flat against the tread. They were not fastened.

At the time of the occurrence to be presently described, plaintiff was a married woman, fifty years of age, and for aught that appears was in the enjoyment of the normal use of all her senses and organs of locomotion. She had been a regular customer of the Hoelschers, going to their market for supplies regularly two or three times a week. She went there about eleven o'clock on Saturday morning, August 19, 1922, to get some meat and vegetables while the premises were in the condition heretofore described. What she observed and what happened to her will be set forth in her own language:

"When I entered I noticed the store was just newly painted and had some boards on the concrete steps. There were about four or five. I went up these steps over these boards and noted the steps had been recently painted. While in the store I purchased meats and vegetables and then started out of the store. . . .

"When I went in I noticed there were boards on every step which did not cover the whole step. They were of various widths, but were all of one thickness, orange boxwood, perhaps a quarter or half inch thick, I don't know. I am pretty sure I took two steps before I fell and then stepped on the board which caused my foot to slip off. I was wearing flat oxfords with a flat heel like those the gentlemen of the jury are wearing. I weigh about 165. . . .

"I was coming down the steps. They are stone or concrete, whatever you call those steps. They are not wood. I was coming down those steps. There was little boards laid on those steps. As I came down, the heel of my shoe caught on the back of the board. They were not as big as the steps and the heel caught on it and went on out, see, and threw my foot up and that board got tangled into my foot and tripped me.

"It could be that my heel got back there and pushed the board; I don't know, but at least the board went out and that is the thing that throwed me down; I fell backwards on the step; but that board going over it throwed my foot.

"When I went into the store it was dry; it was not raining; there was nothing to turn the boards up on either end, that I know of; so far as I knew they were firm; had no difficulty going in; I looked as I went down and it looked safe to step my foot on it; there was a hand-rail on the side; that I held on to; had market basket on left arm; nothing on other.

"The board went out from under me, swung over my left foot, tripped me, and almost turned me around; threw me around and I hit with my back on the point of the step; the board went out and stood up and hit on top of my other foot; and went clear on out to the sidewalk.

"The shoes I was wearing on that day were in good condition; good heels on them."

The owner of the building, the tenants and the painter were all made parties defendant.

The petition charged negligence as follows: (1) that defendants "negligently and carelessly failed to exercise ordinary care and diligence to keep the said steps in a reasonably safe condition, when they negligently and carelessly placed the said boards on said concrete steps, making the steps dangerous and unsafe for persons lawfully using the same;" (2) that defendants "negligently and carelessly failed and neglected to exercise ordinary care and diligence to keep and maintain the said steps in a reasonably safe...