Finer v. Nichols
| Decision Date | 03 June 1913 |
| Citation | 157 S.W. 1023 |
| Parties | FINER v. NICHOLS. |
| Court | Missouri Court of Appeals |
Plaintiff, who had previously been a strong, healthy woman, fell through the floor of a privy which defendant, her landlord, had negligently repaired. Plaintiff suffered a miscarriage a few hours thereafter, and subsequently suffered like misfortunes, all of which tended to impair her general health and nervous system. She also suffered severe bowel trouble with which she had not previously been afflicted. There was expert testimony that such troubles, though not necessary results from such an injury, might be directly attributed thereto. Held, that whether they were in fact and whether plaintiff was entitled to recover therefor was for the jury.
6. APPEAL AND ERROR (§ 1053) — RULINGS ON EVIDENCE — CURING ERROR.
In an action for injuries, a witness was erroneously permitted to testify that H. had sought to suborn her to testify falsely for defendant, without any evidence that H. was acting for defendant, or with her knowledge or consent. There was other evidence, however, that defendant herself had approached other witnesses with a view to influencing their testimony favorably to her for a consideration. Held, that the error in admitting the evidence of the first witness was cured by an instruction that the jury should not consider it for any purpose.
7. APPEAL AND ERROR (§ 1053) — REVIEW — RULINGS ON EVIDENCE — PREJUDICE.
It is competent to eliminate the prejudicial effect of admitting improper evidence by a plain and direct instruction that the jury shall not consider it, where there is other evidence to prove the fact concerning which it is said the incompetent evidence admitted appeared to be prejudicial.
8. NEW TRIAL (§ 143) — VERDICT — IMPEACHMENT — AFFIDAVITS OF JURORS.
It is against public policy to permit jurors who concur in a verdict to impeach the result by affidavit or otherwise.
9. NEW TRIAL (§ 143) — VERDICT — IMPEACHMENT — QUOTIENT.
Where a verdict was signed by nine members of the panel, it could not be impeached by affidavits of the dissenting members that it was reached by the quotient method; it appearing that there was no agreement by the jurors participating in such determination to be bound by the result of the computation.
Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.
Action by Rose Finer against Cecelia Nichols. Judgment for plaintiff, and defendant appeals. Affirmed.
See, also, 158 Mo. App. 539, 138 S. W. 889.
Vital W. Garesche and Alexander R. Russell, both of St. Louis, for appellant. Montague Punch, of St. Louis, for respondent.
This is a suit for damages accrued to plaintiff on account of personal injuries received through the alleged negligence of defendant. Plaintiff recovered, and defendant prosecutes the appeal.
Plaintiff, a married lady, together with her husband, was the tenant of defendant of a certain dwelling and appurtenances thereto in the city of St. Louis at the time of her injury. The tenancy was from month to month under a verbal arrangement, and no special agreement for repairs appears in the case. There was situate on the premises as appurtenant thereto a privy, the floor of which had become defective and dangerous because the boards therein were old, worn, and decayed. It appears plaintiff complained of the condition to defendant, and requested the floor be repaired and rendered safe for use. Defendant acquiesced, and she promised that the repairs should be made. The evidence tends to prove that in a few days thereafter defendant, who is also a lady, undertook to make the repairs, and she sent a man to the premises for the purpose. Instead of removing the old floor and laying a new one, defendant's carpenter merely drove some nails into the old and decayed boards, to the end of fastening them in place. After this was done, defendant informed plaintiff the privy floor had been repaired and was safe for use. Thereafter, upon plaintiff's entering the privy, one of the old and decayed boards so utilized in the repair broke under her weight, and precipitated her forward with such force as to inflict severe and permanent injuries.
The petition states the facts substantially as above detailed, and it is urged that it reveals no cause of action against defendant. Indeed, though the evidence tends to prove the facts stated, it is argued too that no recovery should be allowed thereon. There can be no doubt that the landlord is not bound to keep the leased premises in repair in the absence of an agreement to do so made at the time of the letting or thereafter upon a new and sufficient consideration. This being true, an action may not be maintained on account of an injury resulting to the tenant or a member of his family from the mere failure of the landlord to repair the leased premises for the reason no obligation resting on the landlord is breached by such omission. But, be this as it may, the suit proceeds on another and distinct theory, for it is alleged, and the evidence tends to prove, that, though no obligation whatever rested upon defendant in that behalf, she nevertheless voluntarily undertook to make the repairs and caused her carpenter to do so.
The identical case was here on a former occasion and we so declared the law. Furthermore, we then said: "It is averred in the petition, and the evidence tends to prove, that, in repairing the floor of the privy, this carpenter performed the task in such a negligent manner as to render it unsafe, and that the injury to the plaintiff resulted from the negligent manner in which the repair was performed." See Finer v. Nichols, 158 Mo. App. 539, 544, 545, 138 S. W. 889, 891. In so declaring the law of the case, we, of course, spoke in general terms, for, indeed, the judgment was reversed, and the cause remanded there on another and distinct ground, which is wholly unimportant at this time. Because it may be inferred from the general language employed in that opinion that the negligence essential to afford a right of recovery in this class of cases should be of that active and affirmative character as by a misfeasance in performing the manual task of repair which operates to render the condition unsafe, it is now argued that both the petition fails to state and the evidence to prove a cause of action under that rule. The same petition and the same evidence were before us on the occasion referred to, and, though we used general language in disposing of the question, as is usual, the precise phase of the matter now under review was fully considered by the court, and is res adjudicata so far as this case is concerned. See Little v. McAdaras, 38 Mo. App. 187, 190. However, as the argument is pressed upon us with such earnestness, we will examine it more extensively as was done in the case last cited upon the second appeal. To this end, we shall copy here relevant excerpts from the petition, and minutely point out the reasons which influenced the judgment of the court expressed in a more general way on the former review. After stating that plaintiff and her husband occupied the premises numbered 1247 Morgan street, St. Louis, as tenants of defendant from month to month under a verbal letting, the essential averments of the petition proceed as follows: "That situated on and being part of the said premises there was a certain outhouse or privy on said premises that had become unsafe and dangerous for use, the boards of the flooring of the same immediately and directly over the dung vault of said privy being loose, decayed, rotten, and not nailed down; that said defendant did thereafter, to wit, on the ____ day of June, 1902, attempt to repair the said privy, and did in fact on said day of June, 1902, repair the same; that on the 18th day of June, 1902, plaintiff entered the said privy to use the same; that when and after the said plaintiff had entered the privy aforesaid the floor of the same broke and gave way with her, one of the boards of said floor breaking under and beneath her, plaintiff's weight, causing the leg of said pl...
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