FOX v. ITALIAN FRATERNAL BLDG. CO

WOLFE, Commissioner.

Plaintiff brought this action to recover damages for an injury she received when she fell on a dance floor. The defendant corporation owned the building in which the plaintiff fell and it had rented an area on the third floor to the St. Louis Lonely Club, under whose auspices the dance was held. There was a verdict and judgment for the plaintiff in the sum of $3,500, and the defendant prosecutes this appeal.

The evidence revealed that the plaintiff was a widow fifty-five years of age. She enjoyed dancing and had for some time attended dances given each Saturday night by the St. Louis Lonely Club. These dances were held on the third floor of the Italian Fraternal Building owned by the defendant corporation. The dances were open to the public and there was an admission charge for those who were not members of the club. Most of those attending the dances were older people and the number in attendance ranged from about 100 to 300 persons.

The St. Louis Lonely Club rented the hall for the one night each week and had complete charge of the dance that was held there. The floor of the hall was of wood and it was always waxed for the dances. This was done by an officer of the club who spread by hand a granular type of wax which was of about the same appearance as a soap powder. The wax was supplied by the Italian Fraternal Building Company, which always kept enough on hand so that it would be available for the club to use. On the night in question an officer of the club spread the wax in the usual way. The manner of doing this was to fill a quart beer can half full of the substance, to pour small quantities from the can into the hand, and then by hand to broadcast the granules over the floor.

On March 31, 1951, Mrs. Fox attended the dance with Mrs. Shepherd, a friend of hers. They both paid the admission charge and entered the dance hall. It was shortly after eight o'clock and dancing had started at the time they arrived. Mrs. Fox and Mrs. Shepherd began to dance together and when they had covered a distance of about six or seven feet, dancing slowly, Mrs. Fox fell, causing Mrs. Shepherd to fall with her. She hurt her shoulder and had some difficulty in getting up, but several persons came to her assistance. She had wax powder over her clothing and on the back of her shoes and there was a mark on the floor which she described as a skid mark, presumably caused by the heel of her shoe after her foot slipped.

Mrs. Fox had been to a number of these dances before and was familiar with the manner in which the floor was waxed. She said she had noticed them just pouring it out of the can. She did not see them applying the wax that night but she knew that the floor would be waxed as it always had been. She said that there seemed to be more wax at the point where she fell than was on the rest of the floor.

Mr. Greenlee, called on behalf of the plaintiff, testified that he was vice president of the Lonely Club and he described how the wax was poured in the hand and scattered about. He stated that no more than a half can was ever used at any time. This witness testified that the Lonely Club was a corporation and was not in any way affiliated with the defendant, Italian Fraternal Building Company, except that it rented the dance hall every Saturday night from that company. The Lonely Club had full charge of the dance and the floor for the evening and the rental was for a fixed amount and not based in any way upon the number of tickets sold.

The custodian of the building testified that he had been told by his superior that the Lonely Club was using too much wax. He said that he had charge of the wax supply and had at times applied the wax but that on the night in question he put no wax on the floor and that it was being applied by a member of the club when he arrived at the building.

There was other testimony but it need not be set out for a determination of this case, as will presently appear.

It is asserted that the court erred in overruling the defendant's motion for a directed verdict. As one reason for this contention it is maintained that a one night lessor is liable only for conditions existing and created before the demise and that the condition complained of was created after the demise. The case was submitted to the jury on the theory that the floor had been excessively waxed so as to render it unsafe for dancing and that the lessor of the building was therefore liable to the plaintiff for the injury to her shoulder resulting from the fall. In support of this theory it is urged that the lessor of a building leased for one night to be used for amusement or entertainment is required to exercise a degree of care commensurate with the entertainment offered.

We are cited to Brown v. Reorganization Inv. Co., 350 Mo. 407, 166 S.W.2d 476, 481. That case arose out of a fall sustained by a man attending a performance at the St. Louis Arena when he tripped over the leg of a wooden horse, which was one of several set up to form an aisle. The Arena had been rented by the defendant to a promoter of a wrestling show. The court stated:

"The Investment Company not only furnished the `horses' as equipment to be used in making aisles to the entrance doors, but actually set them in place for such use in front of these doors. Thereafter, they were pushed back by the ticket takers only enough to get the doors open and then moved back where the Investment Company employees had put them. In short, they were placed and used at the very spot and in the exact manner that the lessor intended. We, therefore, hold that the Investment Company is liable for any unsafe condition created by such use of this equipment."

It will be noted that the condition causing the injury existed at the time the lessee took over the Arena. Another authority relied upon by the plaintiff is the case of Douglas v. Lang, Mo.App., 124 S.W.2d 642, where the owner of a tent side show allowed a protruding stake to be placed on the floor where pedestrians might fall over it in the dark. Similarly the case of Berberet v. Electric Park Amusement Co., 319 Mo. 275, 3 S.W.2d 1025, 61 A.L.R. 1269, dealt with a defective walk pedestrians were required to use. The only one of the cases cited that deals directly with a situation such as we have here, involving a lessor, is the case of Brown v. Reorganization Investment Co., supra. That case was later discussed in Warner v. Fry, 360 Mo. 496, 228 S.W.2d 729, 731, wherein the court stated:

"There the arrangement was for a one night wrestling show in a large auditorium and the equipment which caused the injury was set in place by the owner's employees. We held that the owner was liable for any unsafe condition created by the use of this equipment. The authorities we cited therein show that this principle of liability has been generally applied to premises leased for public exhibitions and entertainments, especially when they are intended to be used for a very limited period. However, these authorities limit this liability to conditions existing at the time of demise." (Emphasis ours.)

This bears out the contention of the defendant that the plaintiff failed to make a case for the jury inasmuch as the condition complained of did not exist at the time the Lonely Club took over from the defendant company. The plaintiff is not aided by the custodian's testimony that he was told that the Lonely Club used too much wax and that he had at times applied wax to the floor. It may well have been that the club was using more wax than the building company desired to furnish, but its use and its manner of application had long been employed. On the night in question the Italian Fraternal Building Company did nothing but lease the hall and furnish wax commonly used for dance floors. If the wax was negligently applied, it was done by the lessee according to the plaintiff's own evidence. Therefore, no condition of the defendant's making existed at the time the Lonely Club took over that caused the plaintiff to fall and the lessor was consequently not liable for her injury.

It is the recommendation of the Commissioner, for the reasons stated, that the judgment should be reversed.