Wilburn v. Southwestern Bell Tel. Co.

• Decision Date: 15 September 1964
• Docket Number: No. 31703,31703
• Citation: 382 S.W.2d 49
• Parties: Isabelle WILBURN, Plaintiff-Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, a Corporation, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 49

382 S.W.2d 49

Isabelle WILBURN, Plaintiff-Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, a Corporation,

Defendant-Respondent.

No. 31703.

St. Louis Court of Appeals, Missouri.

Sept. 15, 1964.

Thurman, Nixon & Smith, Hillsboro, for plaintiff-appellant.

Dearing, Richeson, Weier & Roberts, Hillsboro, John Mohler and Leo E. Eickhoff, Jr., St. Louis, for defendant-respondent.

DOERNER, Commissioner.

This is an action for damages for personal injuries alleged to have been sustained when plaintiff slipped and fell on the floor of defendant's office in DeSoto. The jury returned a verdict in favor of plaintiff for $10,000 and judgment in conformity therewith was entered. Thereafter, the court sustained defendant's motion for judgment in accordance with its motion for a directed verdict on the grounds that there was not sufficient competent evidence in the record to make a submissible case or support a verdict for plaintiff, and also ruled that if it should be held on appeal that plaintiff made a submissible case, then defendant's alternative motion for a new trial should stand sustained because of certain specified errors. Plaintiff's appeal followed.

In her amended petition plaintiff alleged that on January 20, 1961, while in the defendant's building as a business invitee, and while walking on the floor thereof, she was caused to slip and to fall, and to be injured, as a direct and proximate result of the negligence and carelessness of the defendant. While plaintiff's petition contained various specifications of negligence, plaintiff's sole submission was on the theory that the floor had become dangerous and not reasonably safe by reason of becoming '* * * moist or wet with water or a liquid slippery substance * * *' and defendant's failure to remove the same or to warn plaintiff of the presence and danger thereof.

Plaintiff maintains that the court erred in sustaining defendant's motion for judgment since the evidence made a submissible case, and that the court also erred in its alternative ruling granting defendant a new trial. In view of the first issue we must review the evidence in some detail, from a standpoint favorable to plaintiff, giving her the benefit of any part of defendant's evidence not contradicted by her own testimony on contrary to her theory of recovery, and allowing her the benefit of all favorable inferences arising therefrom. Quigley v. Sneed, Mo., 367 S.W.2d 637.

Plaintiff, 58 years of age, 5 feet 3 inches in height and 260 pounds in weight, was employed as cook in a restaurant named the Salad Bowl, in DeSoto. After getting off work about 3:00 P.M. on January 20, 1961, she went directly to defendant's building, about four blocks from the restaurant, to pay her telephone bill. Her route took her three blocks southwardly down Main Street, and about a half block up Pratt, to defendant's building. It was a rainy, snowy day, and snow was falling at the time. There had been snow on the ground since 10:00 A.M. and by 3:00 P.M. the snow was two to three inches deep. However, plaintiff testified that the snow had been shoveled off of the sidewalks on Main Street and that she walked where it had been shoveled. When she arrived at her destination she wiped her feet on a rubber mat which was free of snow, outside the defendant's building. She then went through a vestibule and into the business office, and walked a distance of about 14 feet or a little less directly to the desk of Mrs. DaPron, one of defendant's service representatives, where she waited approximately five minutes while another customer, Mrs. Sloan, paid her bill and left the office. Plaintiff paid her own bill and turned to leave. After taking just a few steps and traveling about five feet towards the same door by which she had entered her feet went '* * * out from under * * *' her quickly, and she fell on her right side. She tried to get up by putting her hand down on the floor, and '* * * my hand felt damp, it felt like water.' Mrs. DaPron assisted her to her feet and she sat in a chair approximately 15 minutes before leaving the office.

Defendant's office, relatively new, had been open for several months, and plaintiff testified she had paid her telephone bill there regularly each month. She was familiar with the layout of the office, knew what it looked like, and on her prior visits had never noticed anything out of the ordinary about the floor. She stated that it was level and surfaced with 'tile' which was about the size and something like the tile on the floor of the courtroom, and of about the same degree of slickness. (The record indicate that in using the word 'tile' the witnesses were not referring to marble or vitreous tile, but to rubber or asphalt tile.) Cross-examined as to whether she had been looking at the floor on the day she fell she first replied, 'I don't know that I was' but when pressed further conceded, 'Well, I guess I did.' She admitted that she did not notice anything slick or out of the ordinary about the floor as she walked to the desk to pay her bill, but said that the place where she fell, '* * * seemed slicker.' However, she didn't know how much slicker. Asked whether a matter of approximately three feet or four of the tiles would cover about the width of her paths going in and coming out, she answered 'I imagine.' Plaintiff admitted that at the time she fell she was wearing shoes with corrugated soles, which meant that there were diagonal indentations on the bottom of the soles that were as wide 'I imagine about like a pencil.' Asked whether snow had accumulated on the soles she responded, 'I may have some.' To the questions of whether she got all of the snow out of the indentations when she wiped her feet, and of whether any snow on her shoes melted during the time she waited as Mrs. Sloan paid her bill she answered 'I don't know' to both inquiries. As to the amount of water on the floor she testified on cross-examination:

'Q. Now, about this dampness that you say that you felt on your hand when you placed your hand down on the floor to rise up after your fall, there wasn't any puddle of water there on the floor, was there?

'A. Not that I noticed.

* * *

* * *

'Q. Mrs. Wilburn, what I'm trying to get you to tell me, there wasn't any puddle of water there on the floor, was there?

'A. No.

'Q. There wasn't enough to wet your clothing or anything like that?

'A. My clothes was damp.

'Q. And you just felt a trace of moisture on your hand when you put it down there to raise yourself up?

'A. And my coat.'

The only custodial employee in defendant's office was a Mrs. Scott, who worked from 6:00 to 8:00 A.M. and from 11:00 A.M. to 1:00 or 1:30 P.M. During the first period she cleaned the business office, entrance hall, and outside of the door of the vestibule. In cleaning the floor of the office on business days she used a dust mop to dry mop the floor. Her noontime work consisted of cleaning the plant department, where the facilities were located. Over the weekends, when no one was around, she used an ordinary wet mop on all the floors. Mrs. Scott testified that she had never missed a day's work and that she regularly inspected the business office every day around one o'clock; that if she found any unusual substance on, or condition of, the floor she cleaned it up; and that the wet mop was available to wipe up any mud or water that might be tracked in. Mrs. Scott was unable to remember whether she wiped up the business office on January 20, 1961, at any time after 8:00 A.M. Mrs. DaPron stated that as far as she knew the floor had not been cleaned after 8:00 A.M. on the day plaintiff fell. Both she and Mrs. DaPron stated that ordinarily many people came in and went out of the office.

As the court said in Dean v. Safeway Stores, Inc., Mo., 300 S.W.2d 431, 432 and reaffirmed in Wilkins v. Allied Stores of Mo., Mo., 308 S.W.2d 623, 628, the rule governing cases of this character, as declared and set forth in the Restatement of the Law of Torts, is firmly embedded in the jurisprudence of this jurisdiction. That rule is stated in 2 Restatement, Torts, Sec. 343 as follows:

'A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he

'(a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and

'(b) has no reason to believe that they will discover the condition or realize the risk involved therein, and

'(c) invites or permits them to enter or remain upon the land without exercising reasonable care

'(i) to make the condition reasonably safe, or

'(ii) to give a warning adequate to enable them to avoid the harm without relinquishing any of the services which they are entitled to receive, if the possessor is a public utility.'

Fundamentally, the basis of a proprietor's liability in a case of this nature is his superior knowledge of the defective condition of his premises which results in injury to his business invitee. Gruetzemacher v. Billings, Mo., 348 S.W.2d 952; Howard v. Johnoff Restaurant Co., Mo., 312 S.W.2d 55; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278. If a proprietor knows, or in the exercise of ordinary care should know, of a dangerous condition of his premises which involves an unreasonable risk of harm to his invitee, and of which the invitee, in the exercise of ordinary care, does not or should not know, a recovery will be permitted against the proprietor. Harbourn v. Katz Drug Co., Mo., 318 S.W.2d 226; Stafford v. Fred Wolferman, Inc., Mo., 307 S.W.2d 468. But if the dangerous conditions is obvious and known, or in the exercise of ordinary care should be known, by the invitee, actionable negligence is not established and the invitee will not be permitted to recover. Heine v. John R. Thompson Co., Mo., 330 S.W.2d 867; Wilkins v. Allied Stores of Mo., supra; Schmoll v. National Shirt...