Barber v. Kellogg

• Decision Date: 15 November 1937
• Docket Number: No. 18920.,18920.
• Citation: 111 S.W.2d 201
• Parties: BARBER v. KELLOGG et al.
• Court: Missouri Court of Appeals

111 S.W.2d 201

BARBER v. KELLOGG et al.

No. 18920.

Kansas City Court of Appeals. Missouri.

November 15, 1937.

Rehearing Denied December 6, 1937.

Error to Circuit Court, Buchanan County; Sam Wilcox, Judge.

"Not to be reported in State Reports."

Action by Mattie Barber against George Kellogg and others. To review a judgment for plaintiff, defendants bring error.

Reversed.

Randolph & Randolph, of St. Joseph, for plaintiffs in error.

Mayer, Conkling & Sprague and Edw. B. Wilkinson, all of St. Joseph, and Robison & Robison, of Maysville, for defendant in error.

SPERRY, Commissioner.

This is a suit for damages on account of injuries received by Mattie Barber, defendant in error, against George Kellogg and his wife, Carl De Mond, a person of unsound mind, and George Kellogg as guardian of De Mond, plaintiffs in error, the owners of a building in which she was a tenant.

Plaintiff below had a judgment, and defendant below brought the cause to us by writ of error. To avoid confusion, we will refer to Mattie Barber as plaintiff and to the owners as defendants.

The second floor of the building in question was occupied by plaintiff and by a number of other tenants, each of whom occupied a certain room or rooms therein, and all used the halls and stairway in common. The second floor was reached by a stairway which led up from the main door or entrance on the first floor. About halfway up there was a landing, and then the stairway made a right-angle turn and led thence to the second floor. The stairway at night could be lighted by an electric light located at the top, and which light turned on and off with a "pull chain"; and by a light located in the vestibule at the bottom, which light was operated by means of a switch on the wall near the door. Neither light could be operated from the landing. The two lights were operated on electricity furnished by defendants, who also furnished, at their own expense, globe replacements from time to time and otherwise maintained said lights. Defendants did not live in this building nor did they employ any regular caretaker or janitor. Defendants had never assumed the duty of turning these lights off or on. Plaintiff stated in evidence that she had lived there at two different periods, totaling some five years, and that she always turned the lights off and on as her needs required, and the evidence was undisputed that it was no particular person's duty or custom to turn these lights off or on, but that each and every of the tenants occupying the building performed this function as his or her need or desire dictated. Plaintiff makes claim that Mrs. Kellogg, one of the defendants, stated in evidence that defendants had assumed the duty of turning these lights off and on. They base that claim on the following extract from her evidence:

"Q. As a matter of fact, you think it was so light in this hall from lights outside that there was really no need to have any light in the lower hall at all? A. I don't say that. We have always had lights and always do, but you can go there at any time you want to and turn out that light and see every step up there.

"Q. There is so much light there from the day light or the artificial light outside that you don't need any light in the lower hall? A. When dark comes it is natural for everyone to turn on electric lights. We do it from force of habit a great deal. You can go up the steps at any time and there is light. It is not pitch dark in that hall at any time."

She did not say that defendants had ever assumed the duty of turning the lights off or on; and the evidence as a whole, including that of plaintiff, proves the contrary.

Plaintiff was descending the stairs before the light was turned on at the bottom and was injured when she fell down the stairs from the second or third step below the landing. While she stated that she must have stepped on some foreign object on the stairs, which contributed to cause her fall, she was unable to describe it and throughout her evidence insists that it was the lack of sufficient, or any, light, which really caused her to fall.

Defendants offered a demurrer at the close of all of the evidence, and to its rejection they urge reversible error.

Defendants say that they were under no duty to furnish lights. No statute required it of them, and, although an ordinance of the city of St. Joseph, where the house was located, was pleaded, it was not placed in evidence, and we are therefore unable to consider it. Whatever may be the law on this subject in other jurisdictions, we think the Supreme Court has definitely stated the Missouri rule, in the case of Lambert v. Jones et al., 339 Mo. 677, loc. cit. 690, 98 S.W.2d 752, loc. cit. 760, where Commissioner Hyde, in an opinion which exhibits careful and exhaustive examination of the authorities, used the following language:

"However, we hold that Jones was not liable for insufficient lighting of the stairway, for the following reasons:

"First. Jones had assumed no duty as to lights in this stairway either as to the tenants or the public. He had not undertaken to install lights therein or to maintain light bulbs that tenants had installed there or to turn lights on and off.

"Second. There was no evidence sufficient to show any condition inherently dangerous in the construction or arrangement of this stairway, and there was no unguarded elevator well or other hole, trap, or dangerous obstruction therein from which a duty to light the stairway might arise whether he assumed it or not. See McCloskey v. Salveter & Stewart Investment Co., 317 Mo. 1156, 298 S.W. 226.

"Third. There was no statute nor ordinance pleaded or proved which required lights in a stairway in a building of this character.

"Fourth. The common-law rule is that, `in the absence of statute or agreement, the landlord is under no legal obligation to light common passageways for the benefit of tenants or their visitors.' The evidence in this case was that the agreement, if any, was the other way, namely: That the tenants should furnish lights when their invitees used the stairway; that they had installed and maintained their own lights in the stairway and operated them for that purpose; and that the owner had never provided or maintained any lights there. See 36. C.J. 214, § 892; 16 R.C.L. 1041, § 560; Underhill on Landlord & Tenant, 810, § 492; 1 Tiffany on Landlord & Tenant, 635, § 89; 2 McAdam on Landlord & Tenant, 1626; Jones on Landlord & Tenant, 712, § 619; 97 A.L.R. 232, note; 75 A.L.R. 166, note; 58 A.L.R. 1419, note; 39 A.L.R. 302, note; 25 A.L.R. 1312, note; Huggett v. Miers (1908) 2 K.B. 278, 1 Br.Rul.Cas. 97, and note 107-110; Watt v. Adams Brothers Harness Mfg. Co., 1 Dom.L.R. (1928) 59."

The evidence did not indicate that this stairway was any different from the usual stairway. There was nothing that marked it as especially or inherently dangerous. Plaintiff does not attempt to point out any such dangerous condition, excepting only the fact that halfway up it has a landing and makes a right angle turn. That is not an unusual or dangerous construction, but is quite usual and ordinary. This case is not at all like the case of McCloskey v. Salveter & Stewart Inv. Co., 317 Mo. 1156, 298 S.W. 226, where plaintiff fell into an open elevator shaft while attempting to find the stairway in an unlighted entranceway. In such a case, and there are many like it in the reports, the hazardous and dangerous situation created or permitted by the landlord puts upon him a duty, irrespective of statute, ordinance, or contract, to maintain lights.

The case of Duff v. Eichler, 336 Mo. 1164, 82 S.W.2d 881, is typical of that class of cases where maintenance of lights in certain halls and passageways is required by ordinance; but, as has been pointed out, here no such duty is imposed by ordinance.

Plaintiff relies strongly on the following rule: "However, where premises are let to several tenants, each occupying different portions but all, or two or more, enjoy and use certain portions in common, such as entrances, halls, stairways, passageways, or porches, the landlord is held to have reserved such facilities for the common use of the tenants and to be in control thereof with the implied duty of maintenance and repair as to such portions of the premises and to use ordinary care to keep them in a reasonably safe condition, and for failure to perform that duty the landlord is liable for injuries sustained by persons rightfully using such places." Gray v. Pearline, 328 Mo. 1192, loc. cit. 1198, 43 S.W.2d 802, 804. But the court in that case did not hold that the landlord must maintain lights for the use of the tenants. The language, we think, is directed to the keeping of said premises in repair and free from dangers other than disrepair, such, for instance, as open elevator shafts. This is undoubtedly the view of the Supreme Court, for the opinion in Lambert v. Jones, supra, was handed down about five years after that of Gray v. Pearline, supra; and the principle announced in the latter case has been heretofore repeatedly announced in leading text-books and in decisions by the appellate courts of this state. That principle was and is as well settled and as ancient as is the principle announced in Lambert v. Jones, supra. But they are entirely different rules of law, and the one does not include the other.

While the landlord is not under any common-law duty to furnish lights, yet, if he assumes to do so, he may become liable in damages for an unannounced discontinuation of that function, or for negligently failing to perform it properly where said failure results in injuries to one entitled to use the premises. 16 R.C.L. 104; 36 C.J. 214.

Such an...