Baker v. Gates
| Decision Date | 01 December 1919 |
| Docket Number | No. 20536.,20536. |
| Parties | BAKER v. GATES et al. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.
Action by Mrs. Stella Baker against Jemuel C. Gates and others. The named defendant dying during the pendency of the proceedings, his executors, Marvin H. Gates and another, filed an amended answer. Verdict was directed in favor of the executors. Prom an order sustaining plaintiff's motion for new trial, the executors appeal. Reversed and remanded, with directions.
J. R. Bell and Lathrop, Morrow, Fox & Moore, all of Kansas City, for appellants.
J. K. Cubbison, William G. Holt, and H. G. Pope, all of Kansas City, for respondent.
This is an action for damages caused by a personal injury to plaintiff. At the conclusion of the evidence the court directed a verdict for the appellants Marvin H. Gates and B. T. Whipple, as executors of the last will of Jemuel C. Gates, deceased, but afterwards entered an order sustaining plaintiff's motion for new trial, without stating the reason for the order. The appeal was taken by said Marvin H. Gates and. B. T. Whipple, as executors.
The case was begun against Jemuel C. Gates, Joseph M. Jones, receiver of the Spitcaufsky Construction Company, and John Spitcaufsky. Jemuel Gates died during the pendency of the proceedings, and an answer to an amended petition filed by plaintiff was put in by said executors at the January term, 1917. As between plaintiff and Joseph M. Jones, as said receiver, the case was settled December 29, 1914, for $100, plaintiff signing a stipulation to dismiss as to the receiver, and to prosecute no further the cause against him. Jones was receiver of the Spitcaufsky Construction Company under an appointment made in a proceeding in bankruptcy.
Plaintiff was hurt between 8:30 and 9 o'clock on the morning of August 4, 1914, and while she was a passenger in an electric trolley car running southward on Southwest boulevard, a main thoroughfare between Kansas City, Mo., and the city of Rosedale, Kan. As the car was passing a quarry some 450 feet from the boulevard, three charges of powder or dynamite were exploded in the quarry, hurling fragments of rock as far as the boulevard, some of it falling about the car, and one striking plaintiff's wrist. The weather was warm; the car windows were open, and plaintiff had rested her arm on the windowsill. There was evidence that on previous days in the year blasts had been discharged in the quarry violent enough to throw rocks, three to four inches in diameter, as was the one which struck plaintiff, and perhaps some larger, onto the boulevard and beyond it.
The quarry was in a piece of ground known as Deitz hill, an eminence a hundred feet or more high, and from 400 to 450 feet west of the boulevard and the street railway tracks thereon. The land where Deitz hill is belonged to Jemuel Gates, who demised it, February 12, 1913, by a written agreement, to John Spitcaufsky, for 15 years. The quarry is situated on the brow of the hill, facing eastwardly toward Southwest boulevard. Tracks of two or three steam railroads extend near the east foot of the hill, between it and the boulevard nearly on a level with the boulevard, but further from it than from the hill. One dollar is recited to have been paid and received as part of the consideration for the lease, but the instrument says the term was granted "principally for and in consideration of the premises, covenants, and agreements to pay, do, and perform those moneys, acts, and things which the lessee hereinafter promises, covenants, and agrees to pay and do." What Gates wanted was to have Deitz hill reduced to the level of the adjacent tracks of the railroad companies, and Spitcaufsky's undertaking to do this was the true consideration for the agreement. The contract contemplated that Spitcaufsky might make contracts with "companies, corporations, or persons" to take out and crush rock on the premises; that such contracts should not impair or diminish the obligation of the lessee to perform his covenants; and there is a recital that it was understood "the personal qualifications of the lessee are largely the"inducement of the lessor to enter into this lease." It was further provided that the lease was to be terminated "by the death or incapacity of the lessee," and that any person, company, or corporation at that time in the actual occupancy of the premises, and performing the contemplated work under contracts with the lessee, might continue operation upon giving the lessor satisfactory sureties, and in a specified amount, for the strict observance by such occupant of the terms of the agreement (paragraphs I, LV, and XII of lease). It was agreed that the lease should neither be assigned nor recorded, and the lessee was to use every effort and devote his entire time to the removal of all rock and material above the grade of the railroad tracks, "the very purpose and essence of this agreement being that such work shall be conducted with all dispatch." The lessor and his agents were to have access to the property for the purpose of inspecting the work as it proceeded, and Gates was accorded the option to terminate the lease for breach of any of the stipulations by Spitcaufsky by serving certain notices on him.
On December 8, 1913, Jemuel Gates served notice on John Spitcaufsky that, because of the latter's failure to comply with certain specified terms of the lease, Gates had elected to terminate it on January 15, 1914, unless prior to that date Spitcaufsky had complied with those terms. Another notice was served on Spitcaufsky, January 17, 1914, from which it appears he had written to Gates that he had complied as requested; but Gates reiterated his complaint of Spitcaufsky's defaults, and declared the lease at an end.
On July 21, 1914, two weeks before the accident in question, Jemuel Gates served a notice on Joseph M. Jones, as receiver of the Spitcaufsky Construction Company, demanding that Jones desist from trespassing upon the Deitz hill property and taking rock from the quarry; that he would be held accountable for past and future trespasses; further saying Spitcaufsky had violated the terms on which he had been given the right to take rock from the premises, and because of the violation Gates had canceled his right; that neither Spitcaufsky nor any one else had the right to permit Jones to enter upon or take rock from the premises.
Jemuel Gates filed an action against John Spitcaufsky to the March term, 1915, of the Jackson county circuit court, to quiet Gates' title to the premises, setting forth breaches of the terms of the lease as stated in the aforesaid notices, and that the lease had become null and void; that Spitcaufsky had recognized the lease was at an end, but, notwithstanding those facts, was "claiming the right of possession of the above-described premises by virtue of the said lease, and has refused to cancel or surrender the said lease in writing, and thereby said lease, although terminated, in fact constitutes a cloud upon the title of this plaintiff to the property described in said lease, and that plaintiff is remediless at law," etc. Spitcaufsky denied by answer the alleged breaches. At the July term, 1917, when the action was in the names of Marvin H. Gates and B. Thompson Whipple, as executors of Jemuel Gates, a judgment was rendered that the lease had been terminated; that neither Spitcaufsky nor any one claiming by, through, or under him had any right, title, interest, or dominion over the leasehold premises, and the lease instrument was declared canceled and removed as a cloud upon the title of Jemuel Gates and his executors.
The amended petition on which the case at bar was tried alleges Gates leased the...
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