Wolfson v. Chelist, 44946

• Decision Date: 12 December 1955
• Docket Number: No. 1,No. 44946,44946,1
• Citation: 284 S.W.2d 447
• Parties: Bille WOLFSON, Respondent, v. Leo CHELIST, Executor of the Estate of Bernice Chelist, Deceased, Appellant
• Court: Missouri Supreme Court

Page 447

284 S.W.2d 447

Bille WOLFSON, Respondent, v. Leo CHELIST, Executor of the Estate of Bernice Chelist, Deceased, Appellant.

No. 44946.

Supreme Court of Missouri, Division No. 1.

Dec. 12, 1955.

J. C. Jaeckel, Moser, Marsalek, Carpenter, Cleary & Carter, St. Louis, for appellant.

Maurice Mushlin, James W. Jeans, Hullverson & Richardson, St. Louis, for respondent.

VAN OSDOL, Commissioner.

In this action, plaintiff Belle Wolfson had verdict and judgment for $2,000 for injury sustained as the result of a fall on the porch steps of the residence owned and occupied by her sister, Bernice Chelist, now deceased. When plaintiff was injured, she was a social guest at the Chelist home. There was evidence that plaintiff, in walking out through a rear or side door of the house, had stepped and slipped on fragments of meat or grease which remained on the concrete porch floor after the cat had been fed there the night before.

The action was originally brought against Leo Chelist, husband of Bernice. Subsequently by amended petition, Bernice was joined as a party-defendant; and upon the death of Bernice, prior to trial, Leo Chelist, executor, was substituted as party-defendant. At the time of trial, plaintiff dismissed as to the individual defendant Leo Chelist. Defendant Leo Chelist, executor, appealed from the adverse judgment to the St. Louis Court of Appeals. That court reversed by majority opinion. Wolfson v. Chelist, Mo.App., 278 S.W.2d 39. The majority of the members of the Court of Appeals were of the opinion that plaintiff was a 'licensee' in her visit to the Chelist home. Because of a dissent and the certification by the dessenting judge that he deemed the majority opinion was in conflict with this court's previous decision in Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1, 22 L.R.A.,N.S., 1045, the cause was transferred to this court. It is this court's duty to determine the cause the same as on original appeal. Const. Art. V, Sec. 10, V.A.M.S.

Having examined the record and having studied the briefs of the parties filed in the Court of Appeals and the brief of the party-plaintiff (respondent) filed herein, we can find no fault in the reasoning and result of the majority opinion and decision of the Court of Appeals in its disposition of the contentions of the parties relating to the construction of Section 492.200, RSMo 1949, V.A.M.S., as to its effect with reference to the timeliness of the notice given for taking the deposition of Bernice. And we are of the opinion the taking of the deposition of the tnen adverse party, defendant Bernice, who died prior to the tiral of the cause, rendered plaintiff a competent witness as to matters testified to by Bernice in her deposition. Our examination of the record has also disclosed that the statement of facts in the opinion of the Court of Appeals is adequate and accurate, and reference may be made to that opinion for the facts of this case. Actually, we can see no error in the reasoning and result reached in the majority opinion of the Court of Appeals in the review of the entire cause. It seems to be the almost universal rule in Anglo-American jurisdictions that a social guest in a home is not an invitee in a legal sense, but is, in law, a licensee. See the cases collated in Annotations, 12 A.L.R. 987, 92 A.L.R. 1005, and 25 A.L.R.2d 598. See also 65 C.J.S., Negligence, Secs. 32e, 43(4)g, pp. 489, 519; 38 Am.Jur., Negligence, Sec. 117, p. 778; Prosser, the Law of Torts, 2nd Ed., Sec. 77, at pages 447-448.

Plaintiff-respondent in her brief filed herein initially strikes at the presently recognized legal classes--trespasser, licensee and invitee--of entrants upon lands occupied or possessed by another. It is asserted that the conduct of any occupier of land toward any entrant thereon should be examined under the general principles of negligence to determine whether the occupier acted reasonably under all of the circumstances. Reasonableness, it is said, would depend principally upon the character and magnitude of the risk of harm, its foreseeability, and the means and opportunity available to avoid it. Under this test, says plaintiff, her claim would be one for the jury to decide. Plaintiff does complain generally of the existing rule applicable to occupier and trespasser, but she more particularly insists that the legal distinction between licensee and invitee should be abolished because the 'purpose' of a visit with consent or by invitation is not a real, substantial, logical or just basis for distinction. Moreover, plaintiff asserts that, if the distinction between licensee and invitee be preserved, the existing law of Missouri should be adhered to. In this connection, Glaser v. Rothschild, supra, 221 Mo. 180, 120 S.W. 1, 22 L.R.A.,N.S., 1045; McLaughlin v. Marlatt, 296 Mo. 656, 246 S.W. 548, and Mann v. Pulliam, 344 Mo. 543, 127 S.W.2d 426, are cited as authorities in Missouri for treating the legal status of a social guest as that of invitee, with consequential appropriate duty imposed upon the occupier to protect an invitee from harm.

At the very outset of the Glaser opinion, the author got to the root of the thing. He asked, 'Do the facts raise a duty, a breach of which is shown?' A general rule was stated that the owner or occupier of premises lies under no duty to protect those from injury who go upon the premises as volunteers or merely with his express or tecit permission from motives of curiosity or private convenience in no way connected with business or other relations with the owner or occupier. Such a bare licesee, barring wantonness or some form of intentional wrong or active negligence by the owner or occupier, takes the premises as he finds them. 'His fix may be likened unto that of one who, buying lands, buys stones * * *.' But 'the situation with reference to liability radically changes when the owner invites the use of his premises for purposes connected with his own benefit, pleasure and convenience.' (Our italics.) A licensee who goes upon the premises of another by that other's invitation and for that other's purposes is no longer a bare licensee. He becomes an invitee and the duty to take ordinary care to prevent his injury is at once raised and for the breach of that duty an action lies.

Therefore, in legal contemplation the duty and the precautions to be taken in the fulfillment of the duty arise out of the legal relationship between the one (trespasser, licensee or invitee) who goes upon the land and the occupier or possessor thereof. Porchey v. Kelling, 353 Mo. 1034, 185 S.W.2d 820; Glaser v. Rothschild, supra; Indermaur v. Dames, (1866) Law Rep. 1 C.P. 274, 35 L.J.C.P. 184, affirmed (1867) Law Rep. 2 C.P. 311, 36 L.J.C.P. 181.

The principal criticisms leveled at this classification are assertions of its antiquation and rigidity, and the difficulty in a given case of putting a plaintiff in a particular class--trespasser, licensee or invitee. (It is also said the decision in the basic English case [Southcote v. Stanley, 1 H. & N. 249, 156 Eng.Rep. 1195] treating with the duty of a host to a social guest was reasoned from premises not exploded.) Counsel also speaks of property interests as if those interests are opposed to human interests. Consequently, it is urgen that all entrants coming upon an occupier's premises by invitation or permission, express or implied, should be afforded the protection of one uniform duty of the occupier to exercise due care in the circumstances.

We are not inclined to agree that the language of the Glaser opinion, which language we have quoted and italicized supra, is substance for the belief that the author of the opinion and this court had in mind an entrant's visit with the 'purpose' of the enjoyment of the social relationship of host and guest. Nothing in the language of the whole opinion so indicates. And the opinion did not treat with such a factual situation. McLaughlin v. Marlatt, supra, does not support the position of plaintiff herein. In that case, upon appeal, defendant was contending plaintiff was a trespasser. In addressing itself to that contention, this court observed that plaintiff had an implied invitation to visit his neighbors, including defendant Marlatt and his employees. It was said that plaintiff had an 'implied license' to come upon defendant Marlatt's land. Apparently plaintiff was making a social visit to friends who were in defendant Marlatt's employ. There was evidence of defendant's active negligence, if not wanton conduct, in shooting plaintiff. But it is true plaintiff in the McLaughlin case was not contending he was an invitee. In Mann v. Pulliam, supra, this court decided the case on the issue of 'foreseeability' applied as a test in determining negligence. It was deemed unnecessary to there consider and this court did not there consider the questions presented here.

Counsel for plaintiff has proposed an outline for us to adopt in writing our opinion. In Paragraph (1) of the outline, it is suggested that we write, 'The attempt to classify visitors to land as trespassers, licensees or invitees should be abandoned in favor of a rule requiring the occupier of premises to use due care to avoid their injury, 'due care' to be determined by the jury and to depend upon (a) the invitation or permission, (b) whether express or implied, (c) the purpose of the visit, (d) the benefit, economic or otherwise, flowing to the visitor and occupier, (e) the nature of the premises, (f) the activities thereon conducted, (g) the nature of the defect or danger, whether unusual, 'trap,' extra-hazardous or what-not, (h) the foreseeability of harm, (i) the ease of correction or warning, (j) the notice or knowledge, express or implied, of the occupier and visitor, (k) relative 'positions' of the parties, e. g., their youth or infirmity, etc., and (1) the number of persons exposed to the risk of injury, * * *.'

Now counsel does not specifically point out how the adoption of these...