Montgomery v. Allis-Chalmers Mfg. Co. , 1942 Tex. App. LEXIS 471 ( 1942 )

The parties will be referred to as in the court below. Sam Montgomery, the plaintiff, sued Allis-Chalmers Mfg. Company, a corporation, and the manager of its Dallas branch office, A. J. Simpson, to recover damages for personal injuries sustained by plaintiff's wife while on the premises of the corporation. The defendants filed separate answers, and, the general demurrer to plaintiff's petition, urged by each, being sustained, the suit was dismissed; hence this appeal.

It appears from plaintiff's allegation that the corporation was engaged in the business of selling, servicing and repairing farm implements and machinery; that plaintiff, accompanied by his wife, entered the business house of the corporation, with the view of inspecting and purchasing a mower, kept on display. It seems that in its building, the corporation maintained an office, a department for servicing, assembling and repairing farm merchandise and machinery; a department where parts used on machinery and equipment were kept; restrooms for both men and women; offices for its various salesmen, and a large room where goods were displayed and prospective purchasers and customers visited to inspect machinery, implements, etc., kept for sale. The building fronted north on the south side of the street, was entered by a short flight of stairs that led to the large display room; immediately to the left after entering was an office, partitioned off and entered through a door; a few feet south of the office door was another door, unlocked, nothing on it to indicate where it led, that opened upon an unlighted landing, from which a steep stairway, 12 to 14 steps, led to the basement of the building; that about three feet south of the door last mentioned, the east wall of the display room runs east about three feet and then turns south, and at this point, a door opens through the east wall of the display room, into the gentlemen's restroom, and is so designated; and several feet further south, a double door opens into a large room used for servicing and assembling merchandise and machinery; no other door is located on the east side of the display room; but there is a double door opening through its south wall into a room where parts and accessories used on implements and machinery are kept; and on the west side, a glass partitioned office, used by salesmen, is located. These are the only doors opening from the display room, and while the record discloses that a ladies' restroom was maintained, its location was not disclosed; obviously, however, it did not open from the display room. The door leading to the basement was conspicuously located near the center of the east wall of the display room, being the only door leading from the room that, before opening, one could not have ascertained, by designation or otherwise, where it led, or what lay within. Before consummating their business mission, plaintiff's wife, desirous of using the ladies' restroom, and no one being present in the display room from whom she could have ascertained its location, mistakenly entered the unlocked, unmarked door leading to the basement, believing same to be the entrance to the room she was seeking; and, on entering, the landing being unlighted, fell down the steps, some 12 or 14 in number, to the basement, and was injured as alleged. Negligence was specified as follows: (1) In maintaining the door through which Mrs. Montgomery entered, without having upon it any warning or sign, indicating what it opened into; (2) in allowing the door to remain unlocked; (3) in failing to provide a guard or rail directly in front of the door, and (4) in failing to have the opening where she entered sufficiently lighted.

Plaintiff challenged the correctness of the action of the court in sustaining the demurrers and dismissing the suit. That plaintiff's wife occupied the status of an invitee, we do not think can be successfully questioned; however, we cannot agree that, the court erred in sustaining the demurrer as to the defendant Simpson. He was simply the corporation's agent, in charge of its Dallas branch, and was not charged with active negligence. In the early case of Labadie v. Hawley, 61 Tex. 177, 179, 48 Am.Rep. 278, Judge Stayton quoted with approval language pertinent to the question under consideration, as follows: "The principal is always liable to third persons for the misfeasances, negligences and omissions of duty of his agent, in all cases within the scope of his agency. The agent is also personally liable to third persons for his own misfeasances and positive wrongs. But he is not, in general, liable to third persons for his own nonfeasances or omissions of duty in the course of his employment. His liability in these latter cases is solely to his principal, there being no privity between them and such third persons; the privity exists only between him and his principal. And hence the general maxim as to all such negligences and omissions of duty is, in cases of private agency, respondeat superior." Also see Galveston Wharf Co. v. American Grocery Co., Tex. Civ. App. 13 S.W.2d 983, 989, 990; 2 Tex.Jur. (Agency) p. 591, Sec. 179.

However, under the liberal indulgence of inferences, implications and intendments in such cases, we are of opinion that, whether or not, in the exercise of reasonable care, the defendant corporation should have anticipated that a person situated as was plaintiff's wife, minus the named precautionary measures, would likely mistake and enter the unlocked and unnamed door under the belief that it opened into the ladies' restroom, was a question of fact and not one of law; nor do we think it can correctly be said, as a matter of law, that she was guilty of contributory negligence.

The doctrine we think applicable to the situation presented, is announced in 38 Amer.Jur. (subject Negligence), p. 796, § 135, as follows: "It is well settled that where a store, office building, or similar business establishment to which the public is impliedly invited has a door leading to a cellar, elevator shaft, or other dangerous place, which is left unfastened, and which, from its location and appearance, may be mistaken for a door which a member of the public on the premises is entitled to use, the proprietor is liable to a person who by mistake passes through that door and is injured."; supported by authorities, among others, 20 A.L.R. 1147, 27 A.L.R. 585, and 42 A.L.R. 1098. We are of opinion, therefore, that the court erred in sustaining the corporation's general demurrer to plaintiff's petition, and dismissing the suit.

The judgment below as to the defendant Simpson is affirmed; but as to Allis-Chalmers Mfg. Company, is reversed and the cause remanded for further proceedings.

Affirmed in part; reversed and remanded in part.