Opinion
No. 21551.
June 4, 1951.
APPEAL FROM THE CIRCUIT COURT, ADAIR COUNTY, TOM B. BROWN, J.
Thomas J. Layson, Trenton, Jayne Jayne, Kirksville, for appellant.
David T. Cavanaugh, Kansas City, R. Leroy Miller, Trenton, W.C. Frank, Kirksville, for respondent.
This is a suit for personal injuries sustained by plaintiff, Ruth Murphy, when she fell on the premises of Dr. C. H. Cullers. She contends that she was caused to fall when she stepped on a steel foot mat and her heel was caught in a hole in the mat. Trial to a jury terminated in a judgment for plaintiff in the amount of $15000. Defendant appeals.
Plaintiff's injury was received May 3, 1943. She filed this suit February 24, 1948. She made no claim against defendant until the suit was filed, nor did she previously tell him what caused her to fall. The cause was tried April 20, 1950.
Plaintiff's husband was present at the time the injury was received but died in 1946. Plaintiff produced no testimony, other than her own, on the question of how the accident occurred, or its cause. Defendant produced two eyewitnesses of the occurrence, and others who gave testimony as to statements of plaintiff in the nature of admissions against interest.
Plaintiff testified to the effect that she was, at the time of the trial, 56 years of age; that, in 1943, she was living with her husband, near Trenton, Missouri; that Mr. Murphy was then, and had been for several months, suffering from a heart ailment and was a patient of defendant; that she had been a patient of defendant since 1938, but was not at that time receiving treatments. She stated that Dr. Cullers' office was located in the northwest corner of his hospital, which faced south on an east-west street; that, to reach the office, one followed a concrete walk running north from the public sidewalk, which sidewalk ran east-west in front of the hospital, a distance of 10 or 12 feet to a flight of concrete steps leading to the office door; that there was a railing running along the west side of the flight of steps; that, on the day the accident occurred, there was a metal mat, for scraping mud from the feet, adjacent to the steps and on the west portion of the walk; that the mat had been there for many years prior thereto; that she was thoroughly familiar with it, had observed it carefully over a period of years, had seen it a hundred times; that the mat was of metal construction, with steel straps running lengthwise, and other steel straps running crosswise; that the straps, or bars, were spread apart and bent; that some spaces were larger than others; that the spaces were widest at the northwest corner of the mat (the portion upon which she stepped); that it was rusty and worn from long usuage; that she considered it to be in a dangerous condition and had so thought for some time prior to this occasion; that she always approached it and stepped on it with caution, and did so on the occasion of her injuries, holding to the railing along the steps as she descended; that she could have descended the steps along the eastern portion thereof without stepping on the mat but that there was no railing along that side.
On May 3, 1943, a fair day, she and her husband, were leaving Dr. Cullers' office. She testified to the effect that she came down the steps, cautiously as heretofore stated, holding to the railing. When she was on the last step she stepped on the mat with her left foot, and moved her right foot to follow through; that she saw a broken place in the mat but that it was too late to stop; that the heel of her shoe entered this hole; that the mat stuck and clung to her shoe and threw her; that she looked and examined the mat when she removed it from her shoe, and saw that her heel had gone into the hole and struck there; that she had not seen the hole before that time but had noticed that some of the spaces between the bars were wider than others; that she had looked at the mat a number of times "Because I had thought it not — * * * well, it was old and worn and rusty and I just thought not a fit thing to be out any place — even my own home." (This last answer was stricken by the court.) "These strips and things were mashed * * * and the holes were spread apart," from wear and long usuage.
Defendant offered the testimony of Oakie Todd and Lela Todd, who were sitting in a car, facing the steps and walk when plaintiff fell, and who saw and observed the accident and heard what was said by plaintiff. Lela Todd went to the aid of plaintiff immediately, and asked her what caused her to fall, that plaintiff said she didn't know what happened. She and plaintiff looked on the walk and steps to ascertain what caused the accident but saw nothing. Witness stated that there was no mat or other obstruction on the walk. The witness stated that both she and plaintiff discussed the fall and wondered what caused it.
Oakie Todd testified to the effect that she saw plaintiff fall; that she was looking at her at the time from a distance of but a few feet; that she heard plaintiff say that she did not know what happened. Witness stated that there was no mat on the walk.
Emil Todd, a son of Lela Todd, was not present and did not witness plaintiff's fall, but arrived at the scene a few moments later, while his mother was giving plaintiff assistance. He heard plaintiff say that she didn't see how it could have happened, that perhaps she fainted. He stated that there was no mat on the walk.
Mrs. Ewing, a half sister of plaintiff, visited her the evening of the accident. She stated that plaintiff told her that her ankle turned, that she didn't know how it happened.
Mrs. Layson, a nurse at the hospital, was called to bring a wheel chair for plaintiff. She stated that when she arrived at the scene of the accident the two Todd women and Dr. Cullers were with plaintiff; that she asked what happened and plaintiff answered: "I don't know. My ankle just turned. I guess it is those high heel shoes; that is what they are good for;" that she looked at the shoes and noticed that they were extremely high heeled, about 2 1/2 inches; that plaintiff said: "My ankle just turned with those high heels. It wasn't anybody's fault. It was just an accident; it couldn't be helped." Witness said that she looked to see if there was anything to cause a fall and there was nothing on the walk; that there was no mat there.
Dr. Mairs, an associate of defendant, was in his office and was notified that some one had fallen. He testified that he went to the scene of the accident; that plaintiff said she didn't known how she happened to fall, but there she was; that she did not mention a door mat.
Defendant testified to the effect that he was notified that some one had fallen; that he went to the scene; that "I said to her, `Mrs Murphy, what happened?' First, she said to me, `Doctor, do you think my leg is broken?' and I said `I am mighty afraid it is.' I asked her what had happened and she said, `I just stepped down there and turned my ankle and here I am.'" Defendant further testified to the effect that, as it was his place of business, he wanted to see what caused plaintiff to fall; that he looked and there was nothing on the walk or steps, no mat; that plaintiff's heels were 2 1/2 inches high; that plaintiff said: "That is just what these high heels are good for."
Defendant contends that the court erred in refusing to give his motion for a directed verdict, offered at the close of all the evidence.
The case is one involving the relationship of owner or occupier of premises to invitee. Stoll v. First National Bank of Independence, 345 Mo. 582, 134 S.W.2d 97, 98. Defendant was the owner and occupier of the premises where the accident occurred, and plaintiff was his business invitee, to whom defendant owed a certain, well defined, legal duty. That duty is well stated in the above cited decision, 134 S.W.2d loc. cit. 100, towit: "`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."
Let us assume, first, that plaintiff fell because the heel of her shoe entered a space between the cross bars of the steel mat, and that the mat was in a defective condition due to long wear and deterioration, so as to permit the heel to enter a space when, if it had been a new mat, such a thing would not have occurred. Let us assume that defendant knew, or should have known, of the defective condition of the mat, in sufficient time prior to the accident, in the exercise of ordinary care, to have remedied its unsafe condition, or to have warned plaintiff of such danger. Assuming the above facts to be true, yet defendant is not liable. Plaintiff testified that she was fully informed of the unsafe condition of the mat, had known of such condition for years, had noticed it a hundred times, and was walking, as she always walked when approaching the mat, with great caution, because she considered it to be in an unsafe condition. She was as fully informed of the danger as she would have been had defendant specifically warned of it before she left his office, just a few seconds before she fell. Stoll v. First National Bank of Independence, 234 Mo.App. 364, 132 S.W.2d 676, loc. cit. 682.
However, plaintiff indicated in her testimony, given in the trial below, that her heel entered a broken place in the mat; and that, but for this broken place, she would not have fallen.
It is noted that she did not mention any broken place in her testimony, given by deposition prior to the trial. But let us assume, as true, that the mat was broken and that that caused the fall. The record is barren of any evidence as to when, or for how long prior to the accident, the mat was broken, or that defendant either knew or, in the exercise of ordinary care, could have known, of that condition, in sufficient time to have repaired the break, or to have warned plaintiff of the danger. Defendant is only liable for injuries received by an invitee because of a defective condition, of which he knew, or should have known in sufficient time prior to the accident to have warned his invitee of the danger, or to have remedied the defect. Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278, 279; Stoll v. First National Bank of Independence, 234 Mo.App. 364, 132 S.W.2d 676, loc. cit. 679.
Plaintiff cites and relies on Lonnecker v. Borris, 360 Mo. 529, 229 S.W.2d 524, which, she says, is exactly similar to the case at bar on the facts. That case deals with the liability of an innkeeper for injuries received by a guest. For that reason, and others, it is not applicable here. Stoll v. First National Bank of Independence, 345 Mo. 582, 134 S.W.2d 97, 101. She also cites, and relies on, Goldman v. City of Columbia, Mo.App., 211 S.W.2d 541. That was a defective sidewalk case and we held that plaintiff was not barred from recovery merely because, in a violent rainstorm, he momentarily forgot about the defect and was injured thereby. It is not applicable to this case. Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369, 372. Plaintiff also relies on Long v. F. W. Woolworth Co., Mo.Sup., 159 S.W.2d 619. In that case plaintiff had no knowledge of the existence of a small hole in the floor over which she was walking with due care for her own safety, when her shoe heel entered the hole and caused her to fall. There, the necessary elements for recovery in the kind of case we are here considering were shown to exist. Defendant knew of the defect long before the accident occurred, and failed to remedy it, or to warn plaintiff thereof; and plaintiff had no knowledge of the existence of the defect. That case does not govern the case at bar.
The judgment should be reversed. BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is reversed.
All concur.