Gilmore v. Kansas City Terminal Railway Co.

421 S.W.2d 520, 1967 Mo. App. LEXIS 627
CourtMissouri Court of Appeals
DecidedOctober 2, 1967
DocketNo. 24713
StatusPublished

This text of 421 S.W.2d 520 (Gilmore v. Kansas City Terminal Railway Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gilmore v. Kansas City Terminal Railway Co., 421 S.W.2d 520, 1967 Mo. App. LEXIS 627 (Mo. Ct. App. 1967).

Opinion

R. KENNETH ELLIOTT, Special Judge.

Plaintiff, an employee of the Pullman Company for over 20 years, was walking to her employment on January 17, 1964, at about 5:15 a.m. when she fell on a patch of ice located on defendant’s premises and was thereby injured. A jury verdict of $1,500 was returned for plaintiff and the trial court thereafter sustained defendant’s after-trial motion for judgment and also granted in the alternative, a new trial. Plaintiff appeals.

The fundamental question presented here is the status of the plaintiff on defendant’s premises at the time she fell. Plaintiff contends that she was a business invitee of defendant. Defendant maintains that the plaintiff was at best a licensee and defendant owed plaintiff no duty of ordinary care, but that plaintiff must take the premises as she found them. Twine v. Norris Grain Co., Mo.App., 226 S.W.2d 415.

[521]*521To determine whether the evidence will sustain plaintiff’s contention we shall, of course, view plaintiffs evidence in the light most favorable to plaintiff, give her the benefit of all favorable reasonable inferences, and disregard defendant’s evidence unless it aids plaintiff’s case. Capriglione v. Southwestern Bell Telephone Co., Mo., 376 S.W.2d 205; Gardner v. Simmons, Mo., 370 S.W.2d 359; Keeney v. Callow, Mo., 349 S.W.2d 75.

Plaintiff testified that it was dark at the time she fell as she walked on defendant’s premises toward the Pullman Company area which was located on defendant’s land, and that there was no way to go to work except over the defendant’s property. She said that for 25 years, without objection by defendant, she had come to work by driving onto defendant’s premises from the north, where she parked her car, and walked down a ramp and over a board walkway to the Pullman building. Plaintiff further testified and admitted that she had seen defendant’s Exhibit 3, which was a bulletin dated January 18, 1963, prohibiting parking in certain areas. Defendant’s master mechanic, Lehman, testified that the area prohibited by his bulletin was the one in which plaintiff parked. Plaintiff testified that she parked in the north yard but that there was a south yard in which she could have parked which was farther away than the north yard. Plaintiff further testified that she asked Lehman in a telephone call for permission to park closer and that he refused, but did tell her to park over there (north) or on Southwest Boulevard, which was farther. Plaintiff’s testimony did not specify when this conversation took place, and such conversation was denied by defendant’s witness Lehman. Plaintiff then testified on cross-examination that she had not asked anyone for permission to park where she did on the day of the accident.

The only evidence, other than that as to the ownership of the land, relating to the relationship of defendant with plaintiff’s employer, came from defendant’s witnesses, wherein it was disclosed that the Pullman Company had a building on defendant’s land to which building plaintiff came to work; that the defendant would switch cars, both Pullman and other railroad cars, to the Pullman premises, but that the cars were serviced for other railroads, not for defendant. Defendant operates no trains and owns no passenger equipment.

Defendant’s evidence disclosed that the “North Coach yard”, where plaintiff fell, was abandoned and closed in 1963, and that there was a parking lot available to Pullman employees to the south of the Pullman building.

This court, in Twine v. Norris Grain Co., supra, analyzed in detail the classification of persons who enter land in the possession of another. In part, this court stated in that case as follows: “A licensee (often called ‘a bare licensee’) is one who enters the premises for his own purpose and with the express or implied consent of the possessor. The possessor is under no duty to such a person to make the premises safe or to warn of dangerous conditions thereon, the possessor being liable only for ‘wanton or willful’ acts or ‘active negligence.’ Glaser v. Rothschild, en Banc, 221 Mo. 180, 184, 120 S.W. 1, 2, 22 L.R.A.,N.S., 1045, 17 Ann.Cas. 576. An invitee (sometimes called a ‘business guest’) is one who enters the premises with the express or implied consent of the possessor and for some purpose of real benefit or interest to the possessor or for the mutual benefit of both. The duties which a possessor owes to such a person include the obligation to made the premises safe or to warn of dangerous conditions thereon, as well as the duties which are owed to a licensee. Giles v. Moundridge Milling Co., 351 Mo. 568, 573, 173 S.W.2d 745, 748; Cash v. Sonken-Galamba Co., 322 Mo. 349, 453, 17 S.W.2d 927, 929.”

Plaintiff cites Gruhalla v. George Moeller Construction Co., Mo.App., 391 S.W.2d 585, wherein the plaintiff attended a meeting held at a church school and fell in the foyer when leaving. The St. Louis Court of Appeals reversed the trial court and di[522]*522rected that court to enter judgment for defendants, saying at page 591: “While we have said that it can be assumed that plaintiff was on the school premises with the permission and implied consent of Father Naes, the mere fact of such an implied invitation alone is not sufficient to make one an invitee in the legal sense. Mere permission without more involves ‘leave and license/ but bestows no right to the care due an invitee.”

The Gruhalla case further emphasizes the necessity of some real benefit or interest to the landowner in order to place the plaintiff in the status of an invitee; and the burden of showing this devolves upon plaintiff. Argus v. Michler, Mo.App., 349 S.W.2d 389, 93 A.L.R.2d 776.

We have carefully examined the evidence in this case and find the record silent as to any facts which would show a real benefit to defendant without resort to speculation and conjecture. The record is silent as to facts which would show a real interest or mutuality in plaintiff’s purpose at the time she fell, that is, proceeding to her employment with the Pullman Company.

We hold in the instant case, as we held in Twine v. Norris Grain Co., supra, that plaintiff was not an invitee of the defendant. Plaintiff cannot enjoy the status of an invitee in the absence of any “real benefit” to the owner. Gilliland v. Bondurant, 332 Mo. 881, 59 S.W.2d 679; Twine v. Norris Grain Co., supra.

Plaintiff argues that, by virtue of her employment by the Pullman Company to clean railroad cars (not belonging to defendant), and by virtue of the fact that she had walked over the defendant’s property for years, it was unnecessary that she be denominated a “business” invitee in order to recover, but that it was sufficient to show she was o.n the owner’s premises for some purpose connected with his business, or beneficial to the owner. Plaintiff cites Gruhalla v.

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Related

Oliver v. Oakwood Country Club
245 S.W.2d 37 (Supreme Court of Missouri, 1951)
Gardner v. Simmons
370 S.W.2d 359 (Supreme Court of Missouri, 1963)
Twine v. Norris Grain Co.
226 S.W.2d 415 (Missouri Court of Appeals, 1950)
Capriglione v. Southwestern Bell Telephone Co.
376 S.W.2d 205 (Supreme Court of Missouri, 1964)
Gruhalla v. George Moeller Construction Co.
391 S.W.2d 585 (Missouri Court of Appeals, 1965)
Keeney v. Callow
349 S.W.2d 75 (Supreme Court of Missouri, 1961)
Argus v. Michler
349 S.W.2d 389 (Missouri Court of Appeals, 1961)
Gilliland v. Bondurant
59 S.W.2d 679 (Supreme Court of Missouri, 1933)
Savage v. Chicago, Rock Island & Pacific Railway Co.
40 S.W.2d 628 (Supreme Court of Missouri, 1931)
Cash v. Sonken-Calamba Co.
17 S.W.2d 927 (Supreme Court of Missouri, 1929)
Giles v. Moundridge Milling Co.
173 S.W.2d 745 (Supreme Court of Missouri, 1943)
Glaser v. Rothschild
120 S.W. 1 (Supreme Court of Missouri, 1909)

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Bluebook (online)
421 S.W.2d 520, 1967 Mo. App. LEXIS 627, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilmore-v-kansas-city-terminal-railway-co-moctapp-1967.