Wells v. Henry W. Kuhs Realty Co.
| Decision Date | 12 July 1954 |
| Docket Number | No. 43839,No. 1,43839,1 |
| Citation | 269 S.W.2d 761,47 A.L.R.2d 1038 |
| Parties | WELLS et ux. v. HENRY W. KUHS REALTY CO |
| Court | Missouri Supreme Court |
J. Raymond Dyer, St. Louis, Alexander M. Goodman, St. Louis, of counsel, for plaintiffs.
R. C. Brinkman, J. C. Jaeckel, Moser, Marsalek, Carpenter, Cleary & Carter, St. Louis, for respondent.
VAN OSDOL, Commissioner.
This is an action to recover $15,000 for the wrongful death of plaintiffs' son. On motion the action was dismissed with prejudice on the ground that plaintiffs' amended petition did not state a claim upon which relief could be granted. Plaintiffs have appealed from the judgment of dismissal.
In plaintiff's amended petition, lengthy and repetitious, it was alleged that plaintiffs were the parents of a son eleven years of age, and that the son's death was caused by the wrongful acts, neglects and defaults of defendant as in the petition alleged.
It was alleged that on July 19, 1950, the date of the death of plaintiffs' son, defendant was the owner of certain real property in the City of St. Louis, being a tract of land some 300 by 330 feet in area, which tract is bounded on the north by Blase Avenue, on the south by Antelope Street, and on the east by Hall Street; that the east side of the tract is improved, but the rear or west part of the tract is an unimproved area; that running east and west through the tract is an open, public, dedicated alley which alley is intersected by two undedicated but publicly used easements or lanes, the more easterly of which lanes is known as 'Heinen Street'; and that between the lanes and north of the public alley is an area, an 'island', triangular in form, and within this area, and just north of the public alley, defendant maintained and operated a 'private dump.'
It was further alleged,
'5. That on July 19, 1950, the date of the hereinafter alleged fatal injury * * *, and for many years prior thereto, said tract and the area around it were in a thickly populated urban neighborhood, in which a great number of children lived, including said deceased; that on said date * * * there was no public playground in that vicinity; that children of the neighborhood, including said deceased, habitually resorted to said lanes and alley, and to said western unimproved portion of said tract, for play; that defendant had knowledge of that fact and permitted said children, including said deceased, to resort thereto and play thereon; that defendant permitted and sanctioned use by certain of its tenants and others of part of said unimproved portion of its said tract, on Blase Avenue east of Heinen Street, for gardening purposes; and permitted and sanctioned people of the neighborhood, and others, to park their cars on said lanes and on other portion, indiscriminately, of said vacant portion of said tract, without let or hinderance and without any signs or other indications prohibiting or regulating the same * * *.
'6. That on July 19, 1950, * * * defendant maintained on said north 'island', above the grade and elevation of said alley, a private dump on which it knowingly permitted the dumping of debris, including broken glass bottles and broken glass jars and jugs and other non-combustible refuse, by its tenants and others, without let or hinderance and without any signs or other indications prohibiting or regulating the same; that said dump was maintained and operated by defendant immediately adjacent and next to said alley, being bounded on its southside by said alley, on its northeast side by Heinen Street and on its west side by said other open, publicly used lane; that said dump was not operated by defendant for hire, but solely for the use and convenience of its tenants and others who might care to deposit their debris thereon; that periodically, whenever it saw fit to do so, or whenever in its opinion such disposition was needed, defendant collected and hauled off said debris it permitted and sanctioned to be deposited and to accumulate there; and that the last time it collected and hauled off said debris from its private dump, before said deceased's fatal injury, was three or four days prior thereto.
'7. That in so maintaining its said private dump, on which it permitted the placing of glass bottles and jars and jugs, broken and otherwise, by the operators of said taverns (on defendant's land fronting on Blase Avenue and Antelope Street) and others, or by whomsoever placed them there, without let or hinderance if indeed not by invitation, and for the sole purpose of convenience, as aforesaid, defendant did not engage in any justifiable economic enterprise, or have any economic justification therefor as compared to the danger and hazard to life and limb so created, broken glass being oftentimes extremely sharp and extremely pointed, particularly broken glass bottles and broken glass jars and jugs when thrown indiscriminately onto a dump, as this glass was.
'8. That on July 19, 1950, and for more than one year prior thereto, there was in effect in the State of Missouri, a lawfully enacted Constitutional provision, being that of Section 31 of Article VI of the Constitution of Missouri, [V.A.M.S.] which provides, in substance and effect, that the City of St. Louis is recognized as a City and a County and as a City has the power, rights and privileges granted it under its Charter.
'9. That on July 19, 1950, * * * there was in effect, in the City of St. Louis, a lawfully enacted Charter, which in Article I Section 25 authorized said City of 'regulate all acts, practices, conduct, business, occupations, callings, trades, uses of property, and all other things whatsoever detrimental or liable to be detrimental to the health, morals, comfort, safety, convenience or welfare of the inhabitants of the City and all nuisances and causes thereof'; and which in Article I, Section 33 authorized said City 'To do all things whatsoever pedient for promoting or maintaining the comfort, education, morals, peace, government, health, welfare, trade, commerce, or manufacture of the City or its inhabitants.'
'10. That under the authority of said Constitutional provision, and under the authority of said Charter, the City of St. Louis, on December 13, 1948, duly enacted in furtherance of the health, welfare and safety of its inhabitants, Ordinance No. 44740, which Ordinance was in full force and effect on July 19, 1950, * * * and which provided as follows:
'11. That said ordinance was enacted in accordance with said Charter; that under the fair meaning of the language used therein, it was designed to prevent personal harm and injury which might be occasioned by unregulated dumping, as well as to prevent unsightly deposits of refuse material within the City Limits at places other than those sanctioned by the City authorities.
'12. That in the operation of its said private dump on said north 'island', in the rear of said vacant premises numbered 380-384 Blase Avenue, and immediately adjacent to and next said open, public, dedicated alley and said publicly used lanes, defendant flagrantly, and without any justification, economic or otherwise, violated said ordinance in that it neither applied for nor received a license for such private dump operation, as required by said ordinance; in that it permitted the dumping of broken glass and other non-combustible refuse thereon above the established grade and elevation of said dedicated alley, as prohibited by said ordinance; in that it failed to cover the same with dirt or ashes or other suitable material, as required by said ordinance; and in that it failed to display a prominent sign thereon designating the same as a 'Private Dump' and so warning people of its existence, as required by said ordinance.
'13. That as the direct and proximate result of defendant's said flagrant and unjustifiable violation of said ordinance, said deceased, while playing in said alley with two companions of about his age, at the place where it is crossed by said westernmost lane near said north 'island' on which defendant maintained its said unlicensed and unlawfully operated private dump, and while engaged with his said companions in a game of catching flying June bugs, and while in pursuit of a flying June bug, and after having unintentionally, unwittingly, inadvertently and innocently strayed and digressed from said alley and said lane a few steps onto said 'island', the distance he progressed thereon from the north boundary line of said alley having been approximately three (3) feet, was caused to slip and stumble on broken glass permitted to be deposited and maintained by defendant on its said dump as aforesaid, and there was caused to fall, and did fall, violently to the ground, breaking through a covering of weeds that defendant had permitted to grow, uncut, on its said dump, his body thereby coming into direct contact with other broken glass, being the broken glass bottles and broken glass jars and jugs defendant had permitted to be deposited and which it maintained on its said dump as aforesaid, which contact caused said deceased to sustain and suffer severe cuts and lacerations...
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