Andrus v. Bradley-Alderson Co.
| Decision Date | 05 March 1906 |
| Citation | 93 S.W. 872,117 Mo.App. 322 |
| Parties | DE KALB ANDRUS, Respondent, v. BRADLEY-ALDERSON COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. William B. Teasdale, Judge.
REVERSED.
Judgment reversed.
Warner Dean, McLeod, Holden & Timmonds for appellant.
(1) The Bradley-Alderson Company, as the plaintiff knew, had no control over the elevator, the machinery connected with it the shaft or the safety gates, and was therefore, as the plaintiff knew, without power to alter, change or repair any of the parts thereof. Having no control, under the law, it was under no duty to make repairs and alterations. McGinley v. Trust Co., 168 Mo. 257; Roddy v Railroad, 104 Mo. 234; 1 Labatt on Master and Servant, p. 362; Troth v. Norcross, 111 Mo. 630; Channon v. Sanford Co., 70 Conn. 573, 41 L. R. A. 200; Whallon v. Elev. Co., 31 N.Y. 174; Hughes v. Gas Light Co., 168 Mass. 395, 47 N.E. 125; Moynihan v. Cement Co., 168 Mass. 450, 47 N.E. 425; Hardy v. Sheddon Co., 78 F. 610, 37 L. R. A. 35; Kirk v. Sturdy, 187 Mass. 87, 72 N.E. 349; DeTarr v. Brewing Co., 62 Kan. 188; 61 P. 689. (2) The same principle is applied in determining the responsibility of a master for the negligence of a servant. The test is the control over the servant at the time in question. Garven v. Railway, 100 Mo.App. 619; Hilsdorf v. St. Louis, 45 Mo. 98; Smith v. Railroad, 85 Mo. 418; Byrne v. Railroad, 61 F. 605; Atwood v. Railroad, 72 F. 447; McGinley v. Trust Co., 168 Mo. 257.
Reed, Yates, Mastin & Howell for respondent.
(1) Where there is no agreement to keep leased premises in repair, the landlord is under no legal obligation to his tenant to make repairs. This is a proposition too well established in this State to require the citation of authorities to sustain it. Among many other cases this rule is declared in Via v. Wells, 17 Mo. 232; Rogan v. Dockery, 23 Mo.App. 313; Burns v. Fuchs, 28 Mo.App. 279; Little v. McAdaras, 38 Mo.App. 187; Ward v. Fagan, 28 Mo.App. 116; Ward v. Fagin, 101 Mo. 669; Deutsch v. Ables, 15 Mo.App. 398. (2) And it is further held that the tenant even, under those circumstances could not recover from the landlord for failure to keep the premises in repair, if injured by reason thereof. Ward v. Fagin, 101 Mo. 669; Wehrman v. Priest, 12 Mo.App. 577.
Plaintiff, who was an employee of defendant, was injured while in performance of his duties. The injury was caused by his falling down an elevator shaft. He sued the defendant for the damage received and prevailed in the trial court.
It appears that the M. Rumely Company owned a large building in Kansas City consisting of six stories and a basement. That it reserved to its own use the basement and the first and sixth floors, and that it rented the remaining rooms and floors to various parties, among them this defendant, who occupied the entire third floor, in which it stored buggies and wagons. The operative part of the written contract of renting was that "we will allow you the use of one entire floor, 66 by 117, together with elevator service, use of shipping dock, also track for loading and unloading cars, at rate of $ 100 per month." There was a large elevator in use, running from basement to top floor, and it was used in common by the Rumely company and the various tenants, including the defendant. The elevator structure included gates on each floor, which could be caused to raise as the elevator proper would come to a floor and would close as it passed on. The structure holding these, and in which they worked, was composed of four posts extending from floor to ceiling, one at each corner of the shaft. A gate was at each end of the shaft (it being longer than wide) and they were held in place by grooves in the posts, in which they worked up and down. The post at the southeast corner, by neglect or oversight was not fastened firmly to the floor when the building was erected. This condition, while not such as to be noticed by casual observation, could have been discovered by inspection. It had not been seen by defendant, or observed by any of its servants, including the plaintiff. The Rumely company's servants operated the elevator exclusively. Defendant's principal place of business was not at this building, but it sent plaintiff and other employees almost daily to the building to get out buggies that were wanted. On the day plaintiff fell into the shaft, he was in the act of moving some buggies, or parts of them, on a truck and it became necessary for him to make a turn close to the southeast corner post. The space for a turn was limited on account of the buggies being near, and as plaintiff was in the act of making the turn, his back or shoulder pressed against the post and gate, and the post, being insecure at the foot, moved sufficient to cause the gate to come out of the groove and swing in over the shaft, when plaintiff, thus left without support, lost his balance and fell thirty feet below. The foregoing is not so complete a statement of the facts connected with the cause of plaintiff's falling as made by the parties, but it will suffice for a full understanding of the law, which we deem applicable to the case.
The real questions for decision on the foregoing facts are, Who was in control of the elevator, and whose duty was it to keep it in such repair as to be reasonably safe? It is familiar law that a landlord is under no obligation to repair leased premises unless he has contracted to do so, and he is therefore not liable for injuries resulting from non-repair. In such instances, the tenant would be liable to all those to whom he owed a duty to maintain a reasonably safe place.
In this case, the defendant, as tenant, did not lease the elevator and from the nature and subject-matter of the contract of leasing, was not and could not, as tenant, have been in control of it. The elevator was maintained by the Rumely company for the common use and benefit of all the tenants, and while no mention is made of that fact in the lease itself, yet the surrounding facts and circumstances may be taken into view in order to give such lease a proper and an intelligible interpretation. [Leonard v. Railway, 54 Mo.App. 293.] The thing rented to defendant by the Rumely company was the third...
To continue reading
Request your trial