*1 117 Airlines, Inc., Mo. v. Midcontinent appears 662), and because S.W.2d clearly awas submission upon a mistaken
“misadventure ipsa
theory” res extent of the the facts of
loquitur doctrine strategy” “legal from distinguished
case as Public
(see Louis Service Smith St. 692), judg
364 Mo. reversed plaintiff against Bell
ment for
and remanded. CC., BARRETT, FILING
BO
cur.
PER CURIAM. by STOCKARD, opinion foregoing
C., adopted as of the Court.
All concur. NASTASIO, Appellant,
Angelina Cinnamon, Molly Philip CINNAMON,
Barney Cinnamon, Dave Jennie Gast Gastman, Respondents. Irma man and
No. 45390.
Supreme Court Missouri. No.
Division 1.
Nov. *2 Swofford, Schroeder,
Ben W. Robert A. Milholland, City, Swofford, C. Kansas John Shankland, City, Schroeder Kansas & counsel, appellant, Angelina Nastasio. Sebree,. Hardy, Bauer, David R. Lane D. Shook, Hardy Ottman, & City, Kansas A. Granoff, City, George Ayl- Kansas V. J. ward, City, respondents. Kansas COIL, Commissioner. Nastasio,
Appellant Angelina
plaintiff be-
low,
appealed
judgment
has
from a
dismiss-
first amended
after
the trial
court
sustained defendants’’
motion to
ground
dismiss on the
upon
failed
state
a claim
granted.
relief could
Plaintiff,
Nastasio,
widow of Don
sought $15,000 damages for her husband’s
wrongful
peti-
death. Her first amended
tion
averred:
defendants were the
operators
4-story
owners and
building
City,
in Kansas
in which were located re-
tail business establishments
first floor
apartments
and
and
upper
rooms on the
three
many
in which
floors
different fami-
resided;
hallways,
lies
stairways,
and
were used
entrances
in common
tenants and their invitees and were under
control;
defendants’ exclusive
April
that on
1, 1953, a fire
occurred
the building in
safety many
of the tenants imperiled and in which other tenants were
died,
injured and
impediment,
that such
injury, and death were the direct result of
negligence
the several
particulars specifically
peti-
averred in the
tion;
agent telephoned
defendants’
fire alarm the
Depart-
responded thereto,
ment which
“and that at
the time
alarm
husband,
of said
Nastasio, deceased, responded
Don
scene of
said
volunteer
pro-
upon
go
ceeded to
said
for the
primary purpose
saving
life and limb of
the tenants”
were in
peril
imminent
a direct result of the
of de-
fendants, and
engaged
that while
in res-
H9
n cuing
persons
husband,
of said
imminently
alarm
Don
imperiled
such
Nastasio,
were caused
was a
em-
porches
[who
ployed by
Department
collapse
fall
permitted
*3
causing
responded
and
directly
duty],
was then off
to
plaintiff’s
husband
the
death;
had
porches
and
been
scene of said
as a volunteer and
were
fire
that such
proceeded
upon
go
of defend-
to
the
long
said
for
for a
to the
time
unsafe,
primary purpose
structural-
and
of
saving
a
and
of
life
limb
dangerous,
in
ants
**
trap
the
“amounting
imperiled
tenants
ly
to
weakened condition
persons
defend-
using them” and that
for
In our recent case of Anderson v. Cin
negligent in
wantonly
grossly
ants were
and
namon, Mo.,
445, 446
(involving
porches to
-causing
permitting
and
such
the
question),
same fire as the
in
one here
condition;
that one
and
in such
main
exist
it was held that a
member
Kansas
defendants, present
the scene of
the
of
Department,
premi
who entered
operation,
plaintiff’s de-
the rescue
saw
fireman,
ses to perform his
duties as
porches
said
under one of
ceased husband
a.licensee;
the status of
that “‘defendants’
said de-
inform
but failed
refused
and
to
negligence
failing
repair
in
porch
to
danger of
the
imminent
ceased of
the
put
and
reasonably
the
in
same
con
safe
thereby grossly
porch’s 'collapse and was
dition’
liability
plain
cannot be a basis of
to
n and
wantonly negligent.
tiff”; and that
alleged
it
“where
is
that
possessor
the
of land was informed that
from
above
be
the
It will
noted
firemen intended to
enter and use the
petition that
summary
amended
the
of
of his
with their
fire-fighting equip
as a re
that her husband
plaintiff averred
they
it,
ment before
on
went
he
be
cannot
responded
the
to
scene of
the
of
alarm
sult
held
failure
liable for
warn them
leave
Defendants’ brief
“volunteer.”
fire
the
presence
knew of
after he
their
there.”
effect that at
to the
a statement
contains
A fireman has been defined as one duty “whose extinguish is to opinion, however, We fires and are of the protect property and life plaintiff a therefrom.” Behr has failed to claim state Soth, 278, 280, 461, Minn. 212 N.W. relief under the “rescue doctrine.” That think We that general definition conclusion de again for’ these We reasons. accurately that, scribes the broad duties of a fire purposes, note for our it is averred according man to the common off-duty of decedent an was’ public. It fireman, employed by follows de City the Kansas Fire ques cedent’s acts of “rescue” at Department, responded the fire in a who fire alarm. performed tion were duty as a of He result is characterized as a “vol duly employed super a fireman averment, however, unteer.” The that he superiors vision City of in the Kansas off-duty City quali an was fireman Now, Department. the “rescue doc meaning and limits fies can be any conception of it contem trine” description ascribed to his as a “volunteer”. plates voluntary by act it, rescuer who in regularly employed As we see emergency attempts prompted a “rescue” Department, of the Kansas es by spontaneous, humane motive to save tablished and maintained under Kansas life, human and which “rescue” provide the rescuer City’s power charter “To and main duty attempt had no in the department fire sense of a reg tain a and to establish prevention or in the extinguish obligation for the sense ulations fires”, by 1(22), him employ virtue of his ment Section fastened judicial A “rescue (of frequently which we ment. doctrine” case take notice), Charter quoted is duty, Wagner volunteer off referred Inter may, when 176, Ry. 232 N.Y. with his relation national N.E. concerns fire far 1, PER it wherein 19 A.L.R. CURIAM. at page rescue, only it if “The risk was said: The COIL, C., opinion by foregoing The wanton, the occasion. is born of be not adopted as opinion of the court. ** * man. emergency begets act, impulsive or enough WESTHUES, All except J., concur deliberate, the occasion.” child is the dissents.
seems deceased’s clear to us that was, action, directed toward whatever WESTHUES, Judge (dissenting). preventing loss people or rescuing principal opinion in follows occa- “child human life was ruling case, companion made in a An- equally contrary, it seems On the sion.” derson v. 282 S.W.2d de- brought into clear by September, cided this court en banc created emergency situation tact 1955. I por- have no fault to find with the solely by of his status reason tion which holds Don City Fire De- the Kansas as member of Nastasio, *5 life, at the lost his injuries he sustained partment and that acting as a fireman and not as ‘Volunteer du- performing he was occurred while in the discharge of a rescue mission. In employed perform. to which he was ties Cinnamon, supra, Anderson v. this writer persons im- words, In “rescue” other to prepared opinion. dissenting The short business; no had periled by fire was only purpose my present- dissent in the risk of rescue” take “the choice to whether -point case is to specifically my out more public employer and to the duty —his to his reasons for majority dissenting. The of the therefore, seems, plain- required it. It to, court has I ruled and do wish not fire could not at the tiff’s actions decedent’s not, should I continue to dissent. shall not him bring within have such as to been a‘hope do so in the future but I have scope hold. We so “rescue doctrine.” day majority may some of .the court classify the status of a fireman. from what we follows have I am mot convinced fireman should decedent’s status on defend be classified as a licensee. The shoe does premises same as ants’ was the that of fire, not fit. In the owner of status, on-duty Consequently, fireman. property, arsonist, unless is an welcomes Cinnamon, v. the rule of Anderson one no more than he does the firemen. supra, was that licensee. Inasmuch as duty The fact that it is the of the firemen allegation there is no go upon premises fight to to the fire defendants knew that does not make them less welcome. As to intended to decedent enter firemen, they the status of are in porch be under the before he licensees, Shypulski vitees or see v. Waldorf premises, went cannot onto Paper Co., 232 394, Minn. be held liable for failure have warned Products 549, 45 N.W.2d loc. 551(2). cit. The case position leave decedent belong, strictly speak holds firemen do not porch after defendants knew of generis. sui ing, to either class but are presence Anderson there. 450, supra, 282 S.W.2d my opinion is not that an owner of property in damages liable should to a .be trial judgment The court dismiss- by injured encountering fireman when petition is affirmed. performing risks in
usual duties. But I an owner am of prop HOLMAN, CC„ erty VAN should be liable to OSDOL and held in unusual, jured as a of an result hidden cur. dan 122 ’
ger
of which the owner had
assume the extraordinary risk of hidden
perils
In
coupled
opportunity to warn.
they
with the
easily
be warned.
case, 282
loc. cit.
the Anderson
Two courts at least have
firemen-
held that
448(3, 4),
that even
do
risks,
this court held
and,
assume such
rea
sons
licensees,
already stated,
warn
regard
holding'
the owner owes
we
hazard. Note
the existence of an unusual
sound. Smith
&
v. Twin State G.
E.
Co.,
unusual
;
it is
N.H.
what
court said: “Thus
57,A.
expected presence their to know of
effect.” floor of a the third
Is not that it would defective man, an unusual weight of a
not bear the this case
hazard? the owner stated that the Anderson case CHRISTY, Plaintiff-Appellant, Lee condition knowledge of the defective *6 present on PETRUS, Paul South Side Auto d/b/a fire; premises at the time Parts, Defendant-Respondent. timely warn- opportunity give he had the No. 44994. do failed to so. Supreme Court of Missouri. whether the de- I am of En Banc. not an unusual porch was or was fective jury. question of fact for was a hazard Nov. question And so was timely warning a given have owner could
question jury. case, 45 N.W.2d Shypulski loc. cit.
In the said, “Certainly, no meritori
553, the court justify can be advanced reason
ous owner, property
view peril, allowed to stand should
of hidden warning when a word silence peril. needless firemen from save warn of hidden burden landowner in
perils ligiitly falls silence,
comparison with cost frequently measured in lives
which is firemen and in the sorrow and
and limbs of Although their families.
suffering fire usual risks incident to their
men assume
entry upon dangerous by made fire, effect of there destructive' is no why they required reason should be
valid