Welch v. McAllister

• Decision Date: 13 May 1884
• Parties: MARGARET WELCH ET AL., Respondents, v. DANIEL W. MCALLISTER, Appellant.
• Court: Missouri Court of Appeals

15 Mo.App. 492

MARGARET WELCH ET AL., Respondents,

v.DANIEL W. MCALLISTER, Appellant.

St. Louis Court of Appeals, Missouri.

May 13, 1884.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Affirmed.

JAY L. TORREY, for the appellant: The plaintiff was a mere volunteer on the defendant's premises.-- Murray v. McLean, 57 Ill. 378; Zoebisch v. Tarbell, 10 Allen, 385. There was no evidence of permanent injury to support the instructions given.-- Steinecke v. Marx, 10 Mo. App. 581; Krech v. Pacific Railroad Co., 64 Mo. 172; Clark v. St. Louis, etc., Railroad Co., 64 Mo. 440; Lillis v. St. Louis, etc., Railroad Co., 64 Mo. 464; Huffman v. Ackley, 34 Mo. 277; Gist v. Craig, 60 Mo. 487; Harrison v. Cachelin, 27 Mo. 26; Bradford v. Pearson, 12 Mo. 71; Cobb v. Fogalman, 1 Ired. L. 440. There was no evidence of the reduction of the earning capacity of the plaintiff, or the extent to which her powers were impaired by the injury.-- Wade v. Leroy, 20 How. 34; Ballou v. Farnham, 11 Allen, 73. Where the plaintiff does not show by his evidence the amount of his damage he is entitled to nominal damage only.-- Smith v. Houston, 25 Ark. 183; DeBriar v. Minturn, 1 Cal. 450; Oakley Mills Mfg. Co.v. Neese, 54 Ga. 459; Cochrane v. Suttle, 75 Ill. 361; Pittsburg, etc., Railroad Co. v. Dewin, 86 Ill. 296. A verdict for exemplary damages, in a case calling for compensatory damages only, will not be allowed to stand.-- City of Chicago v. Kelly, 69 Ill. 475; City of Chicago v. Langlass, 52 Ill. 256; Goodno v. Oshkosh, 28 Wis. 304; Nashville, etc., Railroad Co. v. Smith, 6 Heisk. 174; 2 Thomp. Neg., p. 1269, sect. 65.

SMITH P. GALT, for the respondents.

THOMPSON, J., delivered the opinion of the court.

This cause was before the court at a former term (13 Mo. App. 89), and we reversed the judgment of the circuit court on the ground that the jury had awarded nominal damages only, whereas the evidence showed that a very substantial injury had been suffered. On the trial in the circuit court, from which this appeal has been taken, the plaintiff had a verdict and judgment for $500. We are asked to reverse this judgment on the ground that the court erred: 1. In refusing an instruction for a non-suit at the close of the plaintiff's case. 2. In submitting the question of permanent injury to the jury. 3. In refusing to grant a new trial on the ground of excessive damages.

I. On the first point, it seems to us that the plaintiff submitted substantial evidence sufficient to take her case to the jury. Her husband and co-plaintiff, John Welch, testified as follows: “On the 22d of March, 1881, my wife and I went into the defendant's pork house at Nos. 9 and 11 South Eleventh Street, in the city, to buy a smoked shoulder. We had been buying meat there for two years, about once a month. When we went in the defendant's foreman, Stephenson, was sitting near the door. We had bought meat from him a number of times before. I told him we wanted a smoked shoulder. He said they were out of smoked shoulders, but they had some green ones. There was a big lot of fresh ones on the north side of the room, back. He said they had some salted ones, and they would keep, and he said he would show them to us, pointing to a lot of meat back on the south side of the room. It is a very large room. We started back, I ahead, and he about six feet behind me, and about eight feet behind him came my wife. He was showing me the salted shoulders, when all at once I heard a shriek. I looked around, and my old woman was falling down the hatchway. She seemed to step right off into it. I jumped towards her and looked down, and she was lying all in a heap on the bottom of the cellar. The hatchway was about five feet square. It was open. There was no guard or protection to it at all. It was behind and a little ahead of us. I did not see it myself at all until I saw my old woman fall into it. I didn't know it was there. Never was back in that portion of the store before. It was not light there.”

On cross-examination he said: “He went to look at green shoulders; that the building was fifty feet wide, fronting on the west side of Eleventh Street, by a depth of one hundred feet; that the building was lighted by an eight by twelve feet door and two windows in front, and by a six by twelve feet door and seven windows on the south side of the building; that the door and windows on the south side opened on to an alley; that there was a shed on the north side of the building, so that very little, if any, light came from that side; that the hatchway was about midway of the building, and immediately in front of a window; that the hatchway was extended down to the cellar and up to the third story; that it was open up as well as down, and that opposite each opening was a window; that he did not know whether or not the hatchway was the lightest part of the building; that he did not request his wife to come into the building, and did not know that she was coming back in the building until he heard her make a noise just before he saw her fall into the hatch; that the accident occurred on a bright, light day, between 12 and 1 o'clock; that he did not see a large board sign on which was written ‘No admittance behind this board.”

The plaintiff, Mrs. Welch, testified: “That on the day of the accident she walked into defendant's store and fell through the floor. My husband and I went there to buy some meat, as we had been doing for several years. He asked the foreman for a smoked shoulder, and he said they had none, but talked about salted shoulders, and said he would show them to us. Then we all started back. I never was back there before. I was behind. When I was near these shoulders, all at once I stepped right off into this hole. I shrieked, and then I did not know any more until I was on the street. There was no guard or protection about this hole at all. I did not see it until I fell into it. It was dark there. We had bought meat from this same foreman at that store before.”

On cross-examination she said: “That she did not know that the hatchway was the lightest part in defendant's pork house, as she could not see back in there, as it was dark; that she was not invited, requested, or commanded to go into the defendant's pork house on the day of the accident by her husband, defendant's foreman, or any other person; that she did not see any window right in front of the hatchway, or any window in the second story, or any window in the third story, through which the light was shining brightly; that her feet slipped forward from the south side of the hatchway towards it, and that she fell backwards; that she did not see a large board sign on which was printed plainly and in large letters ‘No admittance behind this board;’ that she could not say whether or not such a sign was there * * * that the accident occurred at noon on a bright day; that she could not say that there were seven windows and a large door standing open on the side of the building where she fell into the hatchway or not, as it was dark to her back in there.”

The general rule that an owner or occupier of enclosed premises owes no duty to trespassers, volunteers, or bare licensees, to keep them in a safe condition so as to prevent injury to persons thus coming upon them, is conceded. This rule has, however, no application in respect of injuries which happen in consequence of dangerous places being left in business houses, into which the public are impliedly invited by the proprietor or tenant to trade or do business with him. This question was very thoroughly considered in the English Common Pleas in 1866, in a case which has been since regarded as a leading case upon the subject. In giving the unanimous judgment of the court, Mr. Justice Willes laid down the rule upon the subject as follows: “The authorities respecting guests and other bare licensees, and those respecting servants and others who consent to incur a risk, being therefore inapplicable, we are to consider what is the law as to the duty of the occupier of a building with reference to persons resorting thereto in the course of business, upon his invitation, express or implied. The common case is that of a customer in a shop; but it is obvious that this is only one of a class; for, whether the customer is actually chaffering at the time, or actually buys or not, he is according to an undoubted course of authority and practice, entitled to the exercise of reasonable care by the occupier to prevent damage from unusual danger, of which the occupier knows, or ought to know--such as a trap door left open, unfenced, and unlighted. Lancaster Canal Co. v. Parnaby, 11 Ad. & E. 223; 3 Per. & Dav. 162; Chapman v. Rothwell, El. Bl. & El. 168; 27 L. J. (Q. B.) 315; Southcote v. Stanley, 1 Hurl. & N. 247; 25 L. J. (Exch.) 339. This protection does not depend upon the fact of a contract being entered into in the way of the shopkeeper's business during the stay of the customer, but upon the fact that the customer has come into the shop in pursuance of a tacit invitation given by the shopkeeper, with a view to business which concerns himself. And if a customer were, after buying goods, to go back to the shop in order to complain of the quality, or that the change was not right, he would be just as much there upon business which concerned the shopkeeper, and as much entitled to protection during this accessory visit, though it might not be for the shopkeeper's benefit, as during the principal visit, which was. And if, instead of going himself, the customer were to send his servant, the servant would be entitled to the same consideration as the master. The class to which the customer belongs includes persons who go, not as mere volunteers, or licensees, or guests, or servants, or persons whose employment is such that danger may be considered as bargained for, but who go upon business which concerns the occupier, and upon his invitation, express or implied. And, with respect to such a visitor at...