Opinion
No. 21851.
October 5, 1953.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, EMORY WRIGHT, J.
J. K. Owen, Kansas City, for appellants.
Frank L. Cohn, Harry A. Hall. Kansas City, for respondent.
Mr. Carsel, plaintiff herein, sued defendants because of injuries received when he fell through a defective floor on defendants' premises. He had a judgment in the amount of $5,000, and defendants appeal.
The sole point raised on the appeal is that plaintiff's main instruction, No. 1, is prejudicially erroneous. The instruction is as follows:
"The Court instructs the jury that if you find and believe from the evidence that on May 27, 1949, the defendants owned the building located at 711 West 12th Street, known as the 7-11 Club, and if you further find that on said date, the plaintiff was directed by defendant David Mitchell to go to a room in the basement of said building for the purpose of obtaining paint with which to paint part of the premises owned by the defendants, if you so find; and if you further find and believe from the evidence that while in the basement room, the floor collapsed and gave way, causing plaintiff to partially fall through said floor and causing plaintiff to be injured, if you find he was injured; and if you further find that the part of the floor through which plaintiff fell was insecure, loose, rotten, worn or decayed so that the floor was not reasonably safe for persons to use; and if you further find from the evidence that the defendants knew of such condition of said floor, or by the exercise of ordinary care could have known thereof in time, by the exercise of ordinary care, to have remedied said condition, and have made same reasonably safe for persons to use, if you so find; or if you find that the defendants, knowing the condition of said floor, directed plaintiff to go into said room and failed to warn plaintiff of the condition of said floor, if you so find; and if you further find and believe that plaintiff was without knowledge of the condition of said floor and was at all times exercising ordinary care for his own safety; and if you further find and believe from the evidence that plaintiff's falling through the floor and being injured, if you find he was injured, was a direct result of the negligence of the defendants, because of their failure to remedy said floor, or to warn plaintiff of the condition thereof, if you so find, that defendants were negligent in either or both of these respects, then your verdict shall be in favor of the plaintiff and against the defendants."
There was substantial evidence on behalf of plaintiff tending to prove that defendants had leased the premises in question for some sixteen years and, on January 24, 1949, they purchased said property; that, some two weeks after they purchased the property, a contractor advised them that the floor, through which plaintiff fell, was in an unsafe and dangerous condition, and was in need of repair; that no repairs were made; that defendant David Mitchell managed the property for himself and his wife; that he employed plaintiff to do some painting in the building; that he directed plaintiff, who had no knowledge of the defective condition of the floor, to obtain a bucket of paint from the basement; that he failed to warn plaintiff of the dangerous condition of the floor; that plaintiff, in carrying out his instructions, was injured when the basement floor gave way and he fell through it. Since no question is raised as to the sufficiency of the evidence the above statement will be sufficient for our purposes.
Defendants contend that two grounds of negligence are submitted by the instruction, in the alternative, and that said issues are inconsistent and in conflict with each other. They state the issues, alleged to have been so submitted, as follows:
"1. The floor was defective; that the defendants knew that the floor was defective and failed to repair same.
"2. That the floor was defective and that the defendants failed to warn plaintiff of such fact."
The law governing this kind of case is as follows:
"`The owner of lands is liable in damages to those coming thereon, using due care, at his invitation or inducement, expressed or implied, on any business to be transacted with or permitted by him, for an injury occasioned by the unsafe condition of the premises, which is known to him and not to them, and which he has suffered negligently to exist, and of which they have received no notice.' Vogt v. Wurmb, 318 Mo. 471, 475, 300 S.W. 278, 279. The above opinion quotes from 20 R.C.L. 56, par. 52, as follows: `The mere ownership of land or buildings does not render one liable for injuries sustained by persons who have entered thereon or therein; the owner is not an insurer of such persons, even when he has invited them to enter. Nor is there any presumption of negligence on the part of an owner or occupier merely upon a showing that an injury has been sustained by one while rightfully upon the premises. The true ground of liability is the proprietor's superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. * * * And, hence, there is no liability for injuries from dangers that are obvious, or as well known to the person injured as to the owner or occupant.' The rule announced above is abundantly supported by the authorities and is well settled in this state." Stoll v. First National Bank of Independence, 345 Mo. 582, 134 S.W.2d 97, 100.
In this case, if defendants knew of the dangerous condition of the premises and failed to warn plaintiff, they would be liable for his injuries only if plaintiff had no knowledge of said condition. Liability may not be predicated on failure to warn, only. However, it may be predicated on the fact that plaintiff had no knowledge of the danger from any source. Defendants were not liable in this case, for failure to warn alone, if it was shown that plaintiff had knowledge of the danger, regardless of the source of his knowledge. Murphy v. Cullers, Mo.App., 241 S.W.2d 13, 16; Stoll v. First National Bank of Independence, 234 Mo.App. 364, 132 S.W.2d 676, 680, 681.
A careful reading of the instruction will disclose that, in order to find for plaintiff, on either theory submitted, the jury was told: "* * * and if you further find and believe that plaintiff was without knowledge of the condition of said floor and was at all times exercising ordinary care for his own safety; * * *". (Italics ours.) The jury was thereby instructed that in no event could they find for plaintiff except they found that he had no knowledge of the dangerous condition of the floor. If the jury did, as a matter of fact, find for plaintiff on the grounds that defendants failed to make safe, or remedy, or repair, a dangerous condition known to them, they were also required to find that said condition was unknown to plaintiff. Of course, the danger would have been known to plaintiff if he had been warned thereof by defendants; but it might have been known to him in some manner without his having been warned. In any event, the jury could not have found a verdict for plaintiff, on any theory submitted by the instruction, without first having found that the danger was unknown to him, by warning or otherwise.
The instruction, as phrased, is not one to be recommended as a model of clarity, but it cannot be condemned as prejudicially erroneous. It cannot be said that inconsistent theories of negligence were submitted, or that there was not substantial evidence to support each of the alternative theories submitted.
Instructions submitting conflicting theories of negligence are bad, Fisher v. Ozark Milk Service, 356 Mo. 95, 201 S.W.2d 305, 309; but there is no inherent defect in an instruction which submits alternative theories of negligence (not inconsistent with each other) if there is evidence to support each theory submitted. Pettyjohn v. Interstate Heating Plumbing Company, Mo., 161 S.W.2d 248, 251, 252; Mahan v. Baile, 358 Mo. 625, 216 S.W.2d 92, 96.
Appellant's criticism of the instruction should be disallowed. The judgment should be affirmed.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is affirmed.
All concur.