*1 elsewhere, by premises or caused either on the of the insured line engaged in the their.em- employees of insured such ’’ ployment. present Hartford in the case liability policy If under why injuries in the rented by limited caused equipment, defects by the equipment reference to “delivered assured should there be coverage applied “from contractor”, provision that and the premises leave the assured until equipment shall the time the returned”, why coverage did exception it shall be any employed injuries person assured not include “caused age.” it is contrary (14) years Also, law or under fourteen significance deny did not Hartford not without injury cover the ground policy its did not liability on the expired. Walsh, ground policy had but on affirmed, Hyde ordered. should be is so judgment The Dalton, CC., concur. opinion by Bradley, C., adopted
PER foregoing CURIAM: —The judges Hays, J except All the concur opinion as the court. absent. Reorganization E. Plaintiff-Appellant-Respondent,
W. Brown, Corporation, Defendant-Appellant, Company, Investment Packs, Defendant-Respondent. N. 38245. Thomas Nos. S. W. 476. One, Division November 1942.
Thomas J. Cole Walter Davis for plaintiff-appellant N. W. E. Brown in Case No. 38101. for respondent
Leahy, & Hecker William O’Herin Walther 38101. No. N. Packs Case Thomas *3 Lansing Moser, Dearing appellant
A. B. Marsalek & Re organization Investment Case No. 38245. *4 E.W. plaintiff-respondent N. Walter Davis Thomas J. Cole No, 38245.
Brown Case *6 HYDE, $20,000 for personal C.—This is an action for in- juries. jury The a plaintiff against corporate returned verdict for (hereinafter defendant Company) called the Investment but favor of defendant The Company Packs. Investment appealed has from the judgment against it, only appealed entered from plaintiff has part judgment exonerating of the Packs. judgment against
Plaintiff’s Investment was for $7416.75, plaintiff’s appeal right $20,000 involves the to recover from appeals judgment, Packs. Since both from are the same final both came to Telephone this court. Bell v. Southwestern [Walsh 331 Mo. 52 W. S. and cases hold that we We cited.] jurisdiction of the have case. whole injured Plaintiff tripped was when he over he was what claimed negligent lobby building a Arena, obstruction a owned Company, promoting the Investment in which Packs avus wrest- ling arrangement evening. show on that The between the defendants was night oral and premises allowed Packs the use for one shows for proceeds, guaranteed Avitha minimum amount. Plain- 15% tiff started to the Avith show Mr. Housam and his niece Miss Behrens. Plaintiff car parked drove it west of Arena. Mr. Housam his preceded plaintiff lobby, and Miss into the Arena went to Behrens entrance, purchased the ticket window west of the north (walking east) point tickets. Plaintiff said that Avhen he reached a just away coming Mr. doors, Avest the north Housam entrance with the stopped tickets. Plaintiff there about three feet two or from a structure, called made of movable wooden structures fence-like “horses,” provide used the entrance He into doors. aisles facing waiting Housam from the southwest for Mr. to come back Avindow, ticket and these Averebehind him. “horses” Plaintiff occurred, further related what then as follows: “I stopped gotten I I because saAv he had tickets and wanted said, pay them, my figured they guests. I . . He . argue will in; we on right, come ‘they all paid for; are all that’s I turned go in, I turned to get in.’ As when we
that out I a wooden horse my caught projection around and heel on step back- I took I think my right hip. ... down and broke sat I *7 ... around. my I turned caught heel when ... I wards. flew down, end the it let me thing grabbed and it fell over that and up.” just a window with ticket doors, had double This north entrance east) was the (the one Only to of them. one of these doors west injured. The Investment was open, plaintiff at the time front of these in “horses” the movable wooden employees placed would people aisles so doors, they opened, to fence were before ushers and the single furnished into each file. Packs come door they after finally arranged “horses” takers, they the ticket and it, enough require both large to opened If crowd was the doors. the arranged make two aisles. opened be and the “horses” doors could two-by-fours, and were estimated were constructed of The “horses” straight a “horse” made weigh pounds One side of the about each. a cross top with a rail and up (without projections) and down fence front.) other (We the On the piece near the floor. refer to this side as legs keep behind them supports projecting side there were back.) legs, standing. (We projecting refer to this as the These side two-by-four end, horse, a at each back from consisted of the feet, a a half to projected rested floor and back foot and two on the resting diagonal support coming up (from piece with a the each on floor) just top the the top front structure below Immediately doors, edge rail. the east front of the at the west open plaintiff injured, door which was when was two of the “horses” placed together had with their made box- been backs supporting projections with their of the like structure on inside straight up box. and down fence This made on the west side leading the aisle to the and door, east would have likewise made straight up down fence for the east an aisle to west side of single opened. door if it should be There was another “horse” on the door, east of the projecting supports projecting side east with its back east, front making with its the' east to the east side aisle .door, door. A fourth “horse” was in front west and could have been used so that its front have made the west side of an nqt However, aisle qpened, door. that door since was this pushed “horse” was structure, over to box-like formed door, against two “horses” at west of the east front side its Thus, it and its legs projected back toward the ticket window. its space back into the people coming which would used be from the ticket window this tripped entrance. Plaintiff over of this leg “horse”, step when he took a backward to turn toward the entrance. lobby lighted nothing plaintiff The was well was to prevent and there
(cid:127)415 seeing from how the “horse” placed; was constructed and but to de- might termine whether it was fastened to floor have required critical examination.
Although many it was people crowding shown that often would be window, around injured the ticket at the time most of the gone only stragglers crowd had inside and there a few in the lobby. Plaintiff that, approached, said he he top part saw the “horse” but he did not look at the foot of it. He said that he directly did not face it as he looking came in he at because was Mr. Housam at the money ticket window. He had some in his hand to pay him for the tickets. The evidence showed top that the rail of the painted “horse” was green part all lower a.neutral color. Both defendants contend that a verdict- should have been against plaintiff directed ground on the negligence that there was no shown, position because the and structure of the wooden “horse” was open obvious; ground on also guilty defendant was contributory negligence as a law, matter of he did observe because part avoid the lower of the “horse.”
thinkWe jury that there was a case on both issues. The cases by cited and relied on defendants are not concerning “theatres, cases public places shows or of required amusement.” “The care the of proprietor of a place public of amusement reasonably is that which is adapted to the character the given, of the exhibitions amusements offered, places patrons resort, to which also, cases, in some customary spectators conduct of of such exhibitions; . . . care with particular commensurate conditions circumstances in given volved in the case.” v. Park Electric Amusement [Berberet Co., 319 275, (2d) 1025, Mo. 3 S. W. cited; and cases see also 26 712, 4-15; R. L.C. Secs. 62 863, 46-59; C. J. Secs. Annotations 22 611, A. L. R. 29 29, A. L. 44 204, R. A. L. R. 53 856, A. L. R. 61 1290, A. L. R. 98 A. R.L. These authorities also hold that a 558.] paying patron place of such a required is not to make a critical examination premises of the safety may determine their but as proper precautions sume that have safety been taken for his those charge. in 875, 68-75; C. J. Secs. 22 [62 A. L. R. Annotations 616. 30, 29 A. L. R. 53 A. 857, L. 61 R. A. L. 1291, R. 98 A. L. R. 560.] place In a lobby like outside Arena, it reasonably could be anticipated patrons passing through would be in considerable numbers; they would be hurrying (especially late) get get inside; and thereafter they tickets would not thinking be taking about or much notice of the character or construction of the takers; aisles to the ticket they might and that come in contact with projections of a “horse”, placed was, as this way one in patrons coming from the ticket window to the entrance. Cr awf [See City ord v. 394, Kansas Stock 215 Yards Mo. 1057; S. W. Jockey City Club, 99, Simmons Kansas 334 Mo. (2d) S. W. 119; Nephler Woodward, 179, 200 Mo. 98 S. W. It would 488.]
416' away from “horse” moved this simple matter to have been a have no It served useful ticket window. next to the of the the side entrance It could kept closed. west door was place when the purpose in back to east door its east of the put been on the side have did structure as make box-like another single there, so “horse” would there position, door. In such the two “horses” west through patrons walked space projections been no into have arrangement an opened. was Such either the door that on side of being tripped any danger patrons completely have would eliminated equipment. this an having alone here was not based on negligence The claimed walking patrons would be into where projecting space obstruction patron tripped that if a also character thereof so the insecure on regain it his projection and took hold of it to balance over its dangerous as an obstruction. character turn over. This added to its circumstances, jury hold surroundings we could Under these reasonably equipment, with insubstantial find that such insecure and space the entrance to the aisles projections into between such it office, dangerous obstruction; and that made and the ticket was We further hold negligence place or leave one them. was neg jury that the could also find get ligent circumstances, seeking to the ticket under these when insisting on Mr. Iiousam then and there for paying office first different failing projection to notice a neutral color tickets, say guilty top structure; he from the and we cannot contributory stepping as a matter law back and negligence striking attempting when turn entrance. New toward the [See diger City, (2d) and cases v. Kansas Mo. 114 S. W. cited; Pettyjohn Plumbing (Mo. Sup.), & Heating Co. v. Interstate 161 S. W. *9 by Company it is not It is contended the Investment that Packs, citing cases, premises liable it rented the to such because had 551, 570, v. Weber, Bender v. Mo. 157 S. and Mahnken as W. 250 51, 43 Gillespie, 329 Mo. S. W. 797. Such usual leases cases of dwellings and buildings apply do not to of business the situation by presented apply here. The rule should is stated American Institute, Torts, Law 359, Restatement of Section as follows: “ purpose A who land a lessor leases for involves the admission lessee, subject large patrons persons a number of of his is to of liability bodily by harm an for caused them artificial condition existing possession, took when the lessee the lessor
“(a) knew or should have known of the condition and or realized therein, unreasonable risk to them have realized the involved should and “ (b) expect patrons had reason to that the lessee would admit his in put the land was condition for their re- before safe ’ ’ ception.
417 authority. weight overwhelming by supported This rule is . 871, it iu 62 61: Thus stated C. J. Section is with, a as, in connection or premises “One be used who leases patron a caused injuries to .place of is liable for public amusement in condition, or, knew by where their defective and unsafe he known such condi- diligence, could have use of reasonable care or char- interrupted tion, and especially where short is this so safety it occupation acter of made obvious the lessee’s premises mainly must be left the lessor.” L. Section 16: 716, it in 26 R. also is said C. So exhibi- building public structure in which regard “In or other for admission given, designed tions to be and entertainments are indirectly directly or compensation, to which the lessor receives out structures hold buildings . or . . the lessors owners purposes for public reasonably safe that the ar.e structures that due they used, impliedly undertake for which are let or buildings. And the care has in the erection of the been exercised duty b.y referred is not relieved of the premises owner of such en- single public leasing property to for temporarily another ” - . tertainment. it collated in fol supporting This is and cases rule discussed . 31; 624; 29 L. R. 44 lowing R. 22 R. A. A. L A. L. Annotations: 1293; 98 L. R 562. 205; L. R. A. L. A. 858; A. 53 R. 61 R. A. L. (2d) 642; Murphy Douglas Lang (Mo. 124 W. App.), v. S. also [See 638, 651;W. 241 App. 209 Mo. S. Electric Park Amusement 205 Assn., Mo. 103 City Retail Merchants’ Hollis v. Kansas W. Young Co., Mo. S. 32; S. W. Oil Waters-Pierce night The In arrangement Here was for one show. Packs only equipment to Company vestment the “horses” as furnished actually making set them doors, be used in to the aisles entrance Thereafter, they were. place front these for such doors. use only enough get open doors pushed back ticket takers employees had Company put and then moved back where Investment very spot and in short, placed them. In and usfed at the therefore, hold We, the exact manner that the lessor intended. any the Investment is unsafe condition created liable equipment. such use this Company next contends that in plaintiff’s The Investment it unwarranted grounds-that struction No. is error on the contains findings fact; and assumptions fact-; it omits essential matters, in confusing. hypothesizing preliminary After this struction continued thus: Packs, knowledge corporation
“And said with full that said *10 be building put, placed, to which was to be caused to use said areaway lobby building remain, or or certain allowed said 'eighteen leg extending therefrom much as wooden horses inches or more and that said wooden horse or were not horses fas tened the floor prevent so as to upsetting injuring them from and persons might who tripped thereby, 'you find; you if be then if so further find and believe from. the evidence that defendant’s action setting so said allowing horses or in so them to remain in area- said way lobby negligent was careless, and you find, if and that so plaintiff by reason ordinary thereof and while in care exercise of you for his own safety, if find, directly so was caused to stumble or trip leg over the you find, said if horses, one and so wooden on that account and because floor, said horse was not fastened to the you find, if plaintiff so fall, you was find, caused to if thus ’’ injured, so, your be if then verdict plaintiff. should be for the
We find no merit in claim defendant’s this instruction as they sumes “that had been injured fastened would not have persons-”; and that “it upsetting was the injured of the horse which plaintiff.” noted, above charge negligence As based on was both obstruction projections trip patrons so as to the insecure character of the “horse” which likely make upset if one trip did over it, and likely make it thus more to cause a fall from which injury short, would result. In negli that it was gence to leave such an unfastened wooden structure pro with such jections a place. at such This you instruction commences “If find and believe from the evidence” hypothesized portion follows the you defendant criticises with “if so find.” Lewis v. [See (Mo. Illinois Central Sup.), R. (2d) 122; Co. 50 S. W. Willard v. (Mo. Sup.), Robertson (2d) 129 S. W. We hold that it cannot reasonably be construed as assuming controverted facts. The second concerning contention this instruction is “it require does not jury find, predicate aas liability, danger ‘horse’ created injury”; or that “defendant knew or ordinary exercise of care should have known persons were likely injured to be because of the complained matters of”; or that premises “the not in a safe condition.” Defendant City cites ex State rel. of Jefferson Shain, 57,Mo. 124 S. W. (2d) 1194. There claimed to have fallen because of a de case, sidewalk. In alleged fective slight defect depres sion “caused one block or section of the being sidewalk lower than the other.” Plaintiff’s main instruction did require a finding that sidewalk was not in a reasonably safe condition. This prejudicial held be error. Sidewalks are not required to kept perfectly be absolutely smooth level. O’Malley City [See Louis, of St. 343 Mo. S. W. 785, and cases cited.] large Just how a depression, slope hole or will constitute an unsafe usually condition of a sidewalk a jury question, and must be sub case, mitted In as such. such a the instruction must not assume that a dangerous small defect created condition. A similar Nephler case is
419 awas small 488,W. where there Woodward, 179, 200 98 Mo. S. v. lighted court dimly theater. This carpet on the aisle of a hole in the in treat “the hole ease, an must not that, in a instruction such said constitute treat facts which light it would carpet and the dim as the " open public in leaving a “cellar door a danger, an like obvious submitting that “in night.” This court also said on a dark sidewalk by jury ought judge be left to the not to question dangerous, should be instructed al result alone that was instance, injury in they might that it resulted in this though find duty neglect only in yet of would be liable the defendants as reasonably engaged prudent men case the condition was such that ordinary by care, foresee or would, in that the exercise of business of the danger.” was, held that failure anticipate however, It by jury make clear to cured main instruction to this positive requirements in another instruction. stated clearly definite here worded and
Plaintiff’s instruction as However, a different as it be. it submits factual situation much could two slight unevenness between sec carpet from a small hole in a aor not authorize a an instruction should course, tions of sidewalk. Of alone, make clear finding negligence upon but should those facts negligence must be those the basis of in such situations slight in view other circum created an unsafe condition defects However, place in a large obstruction found to exist. stances and likely trip people then public travel, projections has obviously injury upset them, from which with creates situation Therefore, plain think anticipated. is much be we to others more to requiring instruction would construed tiff’s here be (likely jury upset) to find that unfastened unstable wooden and might structures, legs extending persons be with therefrom so that lobby thereby, were remain in the tripped placed or allowed to building be knowledge public full use which the an condition that the further put. This would constitute such unsafe create, findings negligent or to continue this that it was and careless ordinary situation, directly (exercising and that this caused injured, finding care) fall be would warranted trip, be thus submitted. discussion similar criticism these facts [For Mick against plaintiff’s main v. John R. made instruction (Mo. (2d) 470; Raymond, 77 W. Thompson App.), Co. S. see also 8375; Instructions, Jenkins Missouri Life Ins. v. State Missouri Wolferman, 666; Inc., (2d) Murphy 334 69 W. Fred Mo. S. Furthermore, plaintiff’s 148 in S. W. Mo. (previously “It is sufficient issues No. stated: on such struction liability defendants under “negligence the instructions stated as given you”) you from credible evidence that defend if find said ordinary knew, by care could have ants exercise of should or likely known, injury result as a reasonable to someone you consequence negligence, natural of their find from the so clearly credible evidence that defendants This negligent.” supplies requirement finding “would, defendants ordinary exercise care, anticipate danger,” foresee or stated Nephler Woodward, instuetion, supra. Defendant criticises this saying misleading it is part tells the erroneous because last this jury to *12 negligent you they “find the if defendants believe knew their negligence you someone, provided negligent.” hurt find them proviso The final plainly only form interpo another of the much you guard against lated “if so” or “if so find” the claim as used to suming facts,’ negligence part and the first of the instruction refers to jury submitted other think instructions. We that the would under stand charge negligence the submitted and hold that in so these prejudicially structions were not erroneous. plaintiff’s against Packs, appeal assigned giving
On error is on 10, instruction No. as follows: jury you
“The if Court instructs the find and believe from that at the time of the accident evidence mentioned in the evi- dence wooden horses which were used form an aisle and over one which plaintiff tripped, claims to' were on have not said occasion under control of defendant N. Thomas Packs and were placed arranged position they or in a there were at the time of the employee- accident an by any defendant Thomas N. Packs or one subject agents to his or control or of servants, his or then direction plaintiff against cannot your recover Thomas N. Packs and verdict ’’ must be for said defendant. justify
Plaintiff’s contention that “the finding by evidence did not jury that the wooden horses were not under the control of said defendant”; nondelegable and that duty “it was his to exercise ordi- nary protect care to they invitees and see it that were not subjected injury,” risks from a condition such shown as here. We think (The these contentions must be sustained. Investment Com- pany had the authorizing instruction favor, same verdict in its so jury permitted would have been to find that no one inwas equipment.) control quoted of this We have the rule of the Restate- liability ment of Torts toas of the lessor. This prevent does not being liable, lessee also negligence there is concurrent of each upon duty based each plaintiff. owes to Section 343 thereof states general liability possessors rules of land to business visitors and Section 387 rule an independent states the as to contractor who charge. has entire Jones, Lambert 677, 339 Mo. 98 S. W. [See (2d) 752, cases; for discussion of Missouri for cases in which lia- bility of both lessor and Kelly lessee has been sustained La- see Co., clede Real & 407, Estate 348 (2d) 90; Investment Mo. 155 W. S. Co., Walsh v. 118, Southwestern Bell Tel. 331 Mo. 52 (2d) W. S. 839.] Certainly Packs went into control when he sellers, installed his ticket open them doors authorized ushers, and takers ticket Arena all use the its commenced then He public. admit evening. He then owed his he had rented which equipment discover and care to reasonable duty to exercise at least patrons were ap- find could jury as the remedy conditions such obviously arrangement unsafe premises obstructions on parent receiving use he intended to equipment movable 716, 64; 26 R. Sec. C. L. J. Sec. accommodating them. C. [62 858; L. R. 205; L. R. A. 628; 44 A. 22 A. R. 16; Annotations L. Young also v. Waters-Pierce 562; see 1293; 98 A. L. R. R. A. L. an make Packs said he did 84 W. 185 Mo. S. Oil they selling and “didn’t areaway tickets as were inspection of the there for they were some obstacle (“horses”) an those consider knowledge his show admission sufficient to purpose.” This had used the injured. Moreover, he before situation exhibitions when these many public for such before times Arena not intend claim that he did used, and he makes no “horses” evening injured. In fact he plaintiff was be so used on the (as why they position in this on explain “I can should be said: only one an evening) In order to close door and have entrance : one *13 noted, clear could have we have it is this door alone.” As open the by moving the west “horse” the side of done to east been there, that there would door with its back to the other “horse” space projections of the door have been on either into no side patrons would walk. over which finally takers, ar who the contention that ticket
Packs makes an employees ranged “horses,” employees were not his of arrange man, oper with a who independent contractor. Packs did agreed service, for an amount a for ticket ated such takers ushers How employer paid their who them. paid each for Packs exhibition. liability controlling employees Packs’ set ever, it as to whose is final posi moved them in front of the door or into these “horses” important is of What is is that there evidence to tion in front door. Arena, equipment it knew how was Packs this show rented it make in front of the and intended that be so used aisles placed, to the Investment car is evidence to show that door. There no any opened any or activities after the doors were had ried on other part except get pro interest in 15 the exhibition further or % permitted equip if he this hold Packs would liable ceeds. We be way anticipated have in a that he could ment to used be way it ar tripped injured by might patrons be cause way arrange obviously ranged (especially when there care, inspection admitted safe) by if reasonable in his have been prevented the existence premises, he could discovered and have therefore, instruction 10 We, hold that No. of such situation. plaintiff. prejudicial was erroneous and as
422 joint liable defendants two seeks hold Since judgment must be one final single injury, there tort feasors but, there liable; since are found against both, both if the same amount measure instructions as improper no claim of verdict is excessive required on that issue. should not be damages, a new trial [Hoel (2d) 126; 61, W. Mo. 85 S. P. R. R. I. & Chicago, v. zel Jones, (2d) 66; Lambert v. W. 140, Mo. 89 S. Yerger Smith, reversed as judgment The is 677, Mo. 98 S. W. abey hold in with directions to remanded cause defendants all against damages liability and amount of both as to ance verdict is dis Company until the ease Reorganization Investment defendant Packs, liability and then to enter of defendant to the posed of as against abeyance held in verdict judgment for the amount against Company, and also Reorganization Investment defendant discharge if finally liable, but for there found his defendant Packs Dalton, Bradley CC., concur. his favor. is a verdict in C., PER foregoing opinion Hyde, adopted CURIAM:- —-The except Hays, J., court. All judges concur opinion of the as the absent. at the relation of the Mutual Benefit Health
State Missouri Hopkins Relator, Corporation, B. Association, & Accident Ewing Judges C. and Nick Kansas Cave, T. Shain, Bland City C. Administratrix Appeals, and Orva Wheeler, Court Estate W. Richard A. 38040. 166 S. Wheeler. No. (2d) 484. One,
Division November 1942.
Rehearing Denied, December 1942.