Schneider v. Dubinsky Realty Co.

• Decision Date: 02 May 1939
• Docket Number: 35211,35212
• Parties: Carl A. Schneider, Appellant, v. Dubinsky Realty Company, a Corporation, Respondent, Richard C. Spackler, Trustee, Defendant
• Court: Missouri Supreme Court

127 S.W.2d 691

344 Mo. 654

Carl A. Schneider, Appellant, v. Dubinsky Realty Company, a Corporation, Respondent, Richard C. Spackler, Trustee, Defendant

Nos. 35211, 35212

Supreme Court of Missouri

May 2, 1939

As Modified on Overruling of Motion for Rehearing April 1, 1939.

Appeal from Circuit Court of City of St. Louis; Hon. Frank Landwehr, Judge; Opinion filed at September Term, 1938 March 8, 1939; motion for rehearing filed; opinion modified motion for rehearing overruled April 1, 1939; motion for rehearing on modified opinion overruled at May Term, 1939 May 2, 1939.

Order of the circuit court granting new trial reversed and the cause remanded (with directions) to reinstate the judgment.

Richard A. Austin and Taylor R. Young for Carl A Schneider.

(1) Any error in Instruction 10 was prejudicial only to the plaintiff and the defendant Dubinsky Realty Company cannot complain thereof. The instruction merely prevented a joint judgment. Neal v. Curtis Mfg. Co., 41 S.W.2d 543, 328 Mo. 389; Barr v. Nafziger Baking Co., 41 S.W.2d 559, 328 Mo. 423; Story v. People's Motor-bus Co., 37 S.W.2d 898, 327 Mo. 719; Grimes v. Red Line Serv. Co., 85 S.W.2d 767, 337 Mo. 743; Stith v. Newberry Co., 79 S.W.2d 447, 336 Mo. 467; Leighton v. Davis, 260 S.W. 986; Brickell v. Fleming, 281 S.W. 951; Clark v. Ry. Co., 234 Mo. 396, 137 S.W. 583; Beave v. Transit Co., 212 Mo. 331, 111 S.W. 52; Maher v. Donk Bros. Coal & Coke Co., 323 Mo. 799, 20 S.W.2d 888; Cunningham v. Haid, 40 S.W.2d 1048, 328 Mo. 208. (2) The defendant Dubinsky Realty Company proceeded upon the theory that it was the owner in possession of the property and joined in the error, which resulted in a verdict against the company alone. Its Instructions 4, 6 and 7 were based on the theory of ownership by the company. Smith v. K. C. Pub. Serv. Co., 43 S.W.2d 548, 328 Mo. 979; Taylor v. Cleveland, C. C. & St. L. Ry. Co., 63 S.W.2d 69, 333 Mo. 650. (3) Whether it be regarded as agent in possession of the property or the owner in possession, the defendant Dubinsky Realty Company was liable to the plaintiff upon a finding by the jury of negligence and the verdict was for the right party. Orcutt v. Century Bldg. Co., 201 Mo. 424, 99 S.W. 1062; Luckel v. Century Bldg. Co., 177 Mo. 608, 76 S.W. 1035; Guthrie v. Wenzlick R. E. Co., 54 S.W.2d 801; Stith v. Newberry Co., 79 S.W.2d 447, 336 Mo. 467.

Harvey B. Cox and Dubinsky & Duggan for Dubinsky Realty Company et al.

(1) While juries must weigh evidence, appellate courts are not bound by testimony demonstrated to be false by all other facts in the case, and further demonstrated to be false by our common knowledge of scientific facts, or where the inference deducible from the testimony is opposed to all reasonable probability, and appellate courts will reverse judgments founded on such evidence. Carner v. Ry. Co., 89 S.W.2d 950; Cluck v. Abe, 40 S.W.2d 560; Sexton v. Met. St. Ry. Co., 149 S.W. 25, 245 Mo. 272; Tate v. Western Union Telegraph Co., 96 S.W.2d 366; Moon v. Brown, 158 S.W. 82, 172 Mo.App. 516. (a) Testimony that is in absolute conflict with the physical facts cannot be allowed probative value and will not be considered where opposed to the common experience of mankind. Tate v. Ry. Co., 93 S.W.2d 876; Grange v. Ry. Co., 69 S.W.2d 961; Roseman v. United Rys. Co., 251 S.W. 106; Nowlin v. K. C. Pub. Serv. Co., 58 S.W. 330. (b) Where the evidence is so improbable and so opposed to all human experience, it will be rejected by the appellate court. Plaintiff's evidence is so utterly incredible as to demand its entire rejection. Rollison v. Wab. Ry. Co., 160 S.W. 999; Empey v. Grand Ave. Cable Co., 45 Mo.App. 424; Alexander v. Ry. Co., 233 S.W. 50; Fleming v. Anderson, 232 S.W. 724; Trent v. Barber, 56 S.W.2d 151; Payne v. C. & A. Ry. Co., 136 Mo. 575; Sexton v. Street Ry., 245 Mo. 258; Lionberger v. Pohlman, 16 Mo.App. 397; Whitset v. Ransom, 79 Mo. 260; Spohn v. Mo. Pac. Ry. Co., 87 Mo. 85; Robinson v. Musser, 78 Mo. 153; Garrett v. Greenwell, 92 Mo. 125; Clark v. Atchison & Eastern Bridge Co., 62 S.W.2d 1081; Yarber v. Connecticut Fire Ins. Co., 10 S.W.2d 961; Nugent v. Milling Co., 131 Mo. 253; Spiro v. St. Louis Transit Co., 102 Mo. 264; Friesz v. Fallon, 24 Mo.App. 443; Zalotuchin v. Street Ry. Co., 106 S.W. 550; Cadwell v. Wilson Stove Co., 238 S.W. 418; Gurley v. Mo. Pac. Ry. Co., 104 Mo. 233. (2) Where the preponderance of the evidence against the verdict is so strong as to raise the presumption of prejudice, corruption, gross ignorance or mistake, on the part of the jury, it will be set aside by the appellate court. Friesz v. Fallon, 24 Mo.App. 442; Baker v. Stonebraker, 36 Mo.App. 345; Empey v. Grand Ave. Cable Co., 45 Mo.App. 26; Price v. Evans, 49 Mo. 397; Garrett v. Greenwell, 92 Mo. 125; Walton v. Ry. Co., 49 Mo.App. 627; Bargraefe v. Knights of Honor, 22 Mo.App. 148. (3) Evidence of offer to compromise is inadmissible and improper and is error. Smith v. Shell, 82 Mo. 220; Sterrett v. Railroad, 25 Mo. 115; Heuttemann v. Viesselman, 48 Mo.App. 589; Gorham v. Auserwald, 59 Mo.App. 78. (4) The owner of premises owes no duty where the tenant was not injured at a point or place in the appurtenance which was not used in common by another tenant; or where the exclusive control of that part of the appurtenance is not reserved by the lessor. Bender v. Weber, 250 Mo. 564; Marcheck v. Klute, 113 S.W. 654; Kisten v. Koplowitch, 202 N.Y.S. 521; Flynn v. Hatton, 43 Howard, P. R. 346; Donovan v. Deeves, 167 N.Y.S. 944; Phelan v. Fitzpatrick, 74 N.E. 327; Naslin v. Childs, 130 N.Y.S. 904; Loucks v. Dolan, 211 N.Y. 237, 105 N.E. 411; Kearines v. Callen, 103 Mass. 298, 67 N.E. 243; Miller v. Mut. Mtg. Co., 112 Conn. 303, 152 A. 154. (5) Where the owner commits the general management of property to another as agent of the owner and such agent accepts the general management, such agent is equally liable with the owner to a tenant where such owner himself would be liable. Orcutt v. Century Bldg. Co., 201 Mo. 450; Luckell v. Century Bldg. Co., 177 Mo. 626; Guthrie v. Wenzlick R. E. Co., 54 S.W.2d 805; Stith v. Newberry 79 S.W.2d 455; Phillips v. Ry. Co., 211 Mo. 437; State ex rel. Hancock v. Falkenhainer, 316 Mo. 657; McCower v. Lead Co., 216 Mo.App. 385; Baird v. Flour Mills Corp., 203 Mo.App. 438; Varas v. Stewart & Co., 223 Mo.App. 399; State ex rel. Hancock v. Falkenhainer, supra, the court said: "The Courts of Appeals are following this case as our latest word on the subject."

Brackman & Versen and Amandus Brackman for Richard C. Spackler.

(1) The court should have sustained the respondent Spackler's demurrer to the evidence, it appearing that the owner of the apartment building and not Spackler was in charge of its management, control and supervision. Orcutt v. Century Bldg. Co., 201 Mo. 424. (2) The court should have sustained respondent Spackler's demurrers to the evidence because the plaintiff was injured on that part of the premises appurtenant to and solely used by him in connection with his apartment. A landlord is only liable for injury occurring on a portion of premises used in common with other tenants and being in the exclusive control of the landlord. Bender v. Weber, 250 Mo. 551; McGinley v. Alliance Trust Co., 168 Mo. 257; Coates v. Meriweather, 144 Mo.App. 89; Maslin v. Childs, 130 N.Y.S. 904; Donovan v. Deeves, 167 N.Y.S. 942; Phelan v. Fitzpatrich, 74 N.E. 327. (3) In considering the question of error in instructions it is settled law that all instructions must be read together. Williams v. Barnes, 215 Mo.App. 354, 253 S.W. 807; Baxter v. Lbr. Co., 186 Mo.App. 358; Jenkins v. Mo. State Life Ins. Co., 69 S.W.2d 666; Van Horn v. Union Fuel & Ice Co., 31 S.W.2d 265. (4) The issue as to the agency of the Dubinsky Realty Company was recognized by the plaintiff as an issue in the case, and plaintiff, of course, is bound on appeal by his position at the trial. Barr v. Hays, 172 Mo.App. 600; Rourke v. Railroad, 221 Mo. 46, 119 S.W. 1094; Smart v. Kansas City, 208 Mo. 204, 105 S.W. 709; Gayle v. Car & Foundry Co., 177 Mo. 455, 76 S.W. 987; Dunlap v. Griffith, 146 Mo. 292, 47 S.W. 917; Berkson v. Ry. Co., 144 Mo. 211, 45 S.W. 1119; Romania Apartments v. Goodman, 145 Mo.App. 653, 123 S.W. 542. (5) Instruction 10 submitted the theory of the respondent to the jury. A party is entitled to submit his theory of the case by appropriate instructions. Borgstede v. Waldbauer, 88 S.W.2d 378.

OPINION

Douglas, J.

These are cross appeals.

The plaintiff, claiming as a tenant of defendants, brought suit for damages for personal injuries received when the back porch of his second floor apartment collapsed while he was on it, causing him to be dropped to a concrete pavement on the ground about fifteen feet below. His apartment was one of sixty-two apartments in a large three-story building known as the Sherwood Court Apartments, located at McPherson and Taylor Avenues, in St. Louis. In 1931, this property was encumbered with a deed of trust to secure the payment of notes, in which the defendant Richard C. Spackler was named trustee. The property was then conveyed to the defendant Dubinsky Realty Company subject to the deed of trust. The Realty Company entered in possession as owner and thereafter operated and managed the property and was doing so at the time of the accident. The building is divided into separate sections, each section containing two apartments on each of the three floors. Plaintiff occupied an apartment on the north end of the second floor. There was another apartment adjoining plaintiff's on the south end of the same floor. The rear, or kitchen, entrances of these two apartments were on the west side of a court, or areaway. They opened onto a platform or porch which extended along and was fastened to the wall of the building. The same...