Bartlett v. Taylor

• Decision Date: 01 November 1943
• Docket Number: 38517
• Citation: 174 S.W.2d 844,351 Mo. 1060
• Parties: Frank E. Bartlett v. F. W. Taylor, Appellant
• Court: Missouri Supreme Court

174 S.W.2d 844

351 Mo. 1060

Frank E. Bartlett v. F. W. Taylor, Appellant

No. 38517

Supreme Court of Missouri

November 1, 1943

Appeal from Jackson Circuit Court; Hon. Paul A. Buzard Judge.

Affirmed.

Madden Freeman & Madden and Alfred Kuraner for appellant.

(1) Plaintiff's evidence failed to show that defendant was guilty of actionable negligence, and accordingly defendant's demurrer to the evidence and motion for directed verdict should have been sustained. Logsdon v Central Development Assn., 233 Mo.App. 499, 123 S.W.2d 631; Davis v. Cities Service Oil Co., 131 S.W.2d 865; Vollrath v. Stevens, 199 Mo.App. 5, 202 S.W. 383; Lasky v. Rudman, 85 S.W.2d 501; Bloecher v. Duerbeck, 62 S.W.2d 553; Matton v. Ebeker, 232 S.W. 762; Stoll v. Bank, 134 S.W.2d 97; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278; Mullen v. Sensenbrenner Merc. Co., 260 S.W. 982; Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369; Hudson v. Kansas City Baseball Club, 164 S.W.2d 318; 2 Restatement, Law of Torts, sec. 362. (2) Plaintiff's evidence showed that his own negligence caused his injuries, that plaintiff was contributorily negligent as a matter of law, and accordingly defendant's demurrer to the evidence and motion for directed verdict should have been sustained. 32 Am. Jur., p. 552; Morris v. Kansas City L. & P. Co., 302 Mo. 475, 258 S.W. 431; Eisele v. Kansas City, 237 S.W. 873; Curtis v. Capitol Stage Lines Co., 27 S.W.2d 747; Cash v. Sonken-Galamba Co., 322 Mo. 349, 17 S.W.2d 927.

Homer A. Cope, Cope & Hadsell, and Walter A. Raymond for respondent.

(1) Plaintiff's evidence made a submissible case and the court properly overruled defendant's demurrer to the evidence and motion for a directed verdict and submitted the issue to the jury whose finding in favor of plaintiff is now conclusive. Cento v. Security Bldg. Co., 99 S.W.2d 1; Deschner v. St. Louis & M. R. Co., 200 Mo. 310, 98 S.W. 737; Benz v. Powell, 338 Mo. 1032, 93 S.W.2d 877; Steger v. Meehan, 334 Mo. 220, 63 S.W.2d 109; Stoll v. First Natl. Bank of Independence, 345 Mo. 582, 134 S.W.2d 97; Johnson v. Chicago & E. I. Ry. Co., 334 Mo. 220, 64 S.W.2d 674; Kennedy v. Bressmer, 154 S.W.2d 401; Sec. 9739, R. S. 1939. (2) The issue of contributory negligence was for the jury and the verdict for plaintiff is now conclusive of the issue. Willig v. Chicago, B. & O. R. Co., 345 Mo. 705, 137 S.W.2d 430; Trout v. Laclede Gas Light Co., 151 Mo.App. 207, 132 S.W. 58; Clark v. Kansas City L. & P. Co., 223 S.W. 984; Ernst v. Union Depot Bridge & Terminal Co., 256 S.W. 222; Kennedy v. Bressmer, 154 S.W.2d 401; Long v. F. W. Woolworth Co., 159 S.W.2d 619; Dirickson v. Thompson, 120 S.W.2d 198; Howard v. S. C. Sacks, Inc., 76 S.W.2d 460; Fishang v. Eyermann-Contracting Co., 333 Mo. 874, 63 S.W.2d 30.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

BARRETT

Frank E. Bartlett recovered a judgment of $ 1,500.00 against F. W. Taylor for personal injuries which Bartlett claims to have sustained by reason of Taylor's negligence, as a landlord, in voluntarily making repairs to the premises he formerly occupied as a tenant.

On appeal to the Kansas City Court of Appeals, 168 S.W.2d 168, two of the judges were of the view that Logsdon v. Central Development Assn., Inc., 233 Mo.App. 499, 123 S.W.2d 631; Davis v. Cities Service Oil Co. (Mo. App.), 131 S.W.2d 865 and Section 362 of the Restatement Of The Law Of Torts expressed the applicable and governing legal principles. In applying the principles the majority of the court thought the plaintiff's evidence sufficient to show that the defendant, in making the repairs, had made the premises more dangerous, as he was bound to do, but that the plaintiff had failed to show, as he was also bound to do, that the premises by reason of the repairs had a deceptive appearance of safety or that he did not know of the danger inherent in the more dangerous condition and, furthermore, that he was guilty of contributory negligence as a matter of law and for both these reasons the defendant's demurrers should have been sustained. The majority of the court, however, thought their decision in conflict with Kennedy v. Bressmer (Mo. App.), 154 S.W.2d 401 and certified the case to this court. One of the judges was of the view that the governing principles were not as stated by the majority but that the landlord's liability, after he volunteered to repair, was to be measured by whether he had exercised due care and made the repairs in a careful and prudent manner, that is, by whether he had been negligent and that whether he had in fact been negligent was not to be determined by whether he had made "the physical condition of the premises worse or . . . gave a deceptive appearance of safety" and, therefore, dissented. It was his view that the applicable principles of law were as expressed in Ambruster v. Levitt Realty & Investment Co., 341 Mo. 364, 107 S.W.2d 74; Lasky v. Rudman, 337 Mo. 555, 85 S.W.2d 501; Kennedy v. Bressmer, supra and Marks v. Nambil Realty Co., 245 N.Y. 256, 157 N.E. 129, and that the majority view conflicted with these cases. The dissenting judge, of necessity, must have thought both the defendant's negligence and the plaintiff's contributory negligence questions of fact to be resolved by the jury under all the evidence.

On December 1, 1936, Taylor leased to Bartlett, for a period of three years, the premises at 8033 Woodland in Jackson County. The building was made up of seven rooms used as a dwelling, a large room in the front of the building used as a grocery store and another room, adjoining the storeroom, built and used as a garage. The garage door, according to the plaintiff's evidence, was twelve feet square and weighed about 1000 pounds. The door was hung on a double track with two sets of swivel rollers and was opened by rolling it up and to the north on the track. Bartlett was not wholly satisfied with the arrangement of the building and desired certain alterations and so it was agreed, in the lease, that he, the tenant, should make the changes. The front of the building was to be set back four feet and there was to be a partition between the storeroom and the garage. Bartlett was to make the changes at his expense and in exchange was to be excused from paying the first seven months' rent.

Bartlett made the alterations and after they were completed it was no longer possible to use the original mechanical device for opening and closing the garage door. In order to use the door Bartlett put a half inch eye bolt in the center and bottom of the door, bored a hole through a joist in the roof of the garage about four feet inside of and directly above the door and placed a loop of quarter-inch steel cable in the eye bolt and through the hole in the joist. A block and tackle with metal hooks on each end (designated a fence or wire stretcher by defendant's counsel) was hooked into or engaged in the loops of cable in the eye bolt at the bottom of the door and in the loop at the joist. The door was then raised and lowered by the block and tackle and held open by fastening the ropes after the door was raised.

After Bartlett had been in the premises about a year, using the door as he had fixed it in the meanwhile, Taylor made certain rather extensive repairs to the premises, particularly to the foundation and roof. Again according to the plaintiff's evidence, after the repairs to the foundation had been started, in September, 1937, Bartlett returned from a trip to the market and Taylor was in the garage talking to Oscar Tann, the man Taylor had engaged to make the repairs. According to Bartlett, Tann told Taylor that the wire or cable did not look safe -- looked worn -- and that he was going to fix it and Taylor told him to "go ahead and fix it." Bartlett then saw Tann with "a piece of insulated electric wire in his hand . . . and it looked like it was doubled up two or three or four or five pieces of wire . . . about a foot long in the whole thing when it was looped together." That night Bartlett looked in the garage to see that the doors were closed and observed that the electric wire he had seen Tann with was engaged in a loop in the eye bolt at the bottom of the door with the block and tackle hooked to it. Tann's work continued about six days and during that time Tann opened the door in the morning and closed it at night. Bartlett himself used the door "five or six days" after the foundation was completed and it was about thirty days after the electric wire had been inserted in the eye bolt that the door fell on Bartlett and injured him.

On October 4, 1937, Bartlett and his daughter were carrying apples from a truck and storing them in the garage when the door fell and struck him on the head. After the door fell a piece of the broken electric wire was seen in the eye bolt and there were two pieces of broken wire on the floor. Bartlett's daughter took the piece of wire from the eye bolt, showed it to her father and it was produced at the trial.

Excerpts from the testimony of the plaintiff and his witnesses will more clearly present the respective contentions of the parties as to the facts and the permissible inferences to be drawn from the evidence, as well as illustrate the legal principles involved. The following is from the cross-examination of Bartlett: "Q. You were an experienced workman? A. I was. Q. Experienced in carpenter work? A. I have built houses. . . . Q. You have done such work as hanging garage doors before? A. Yes, sir. . . . Q. And you made these changes in a workmanlike manner, in your opinion, is that right? A. Yes, sir. Q. And, of course, in attaching this block and tackle to the ceiling joists and to the door you were using some wire? A. Yes, sir. Q. And the wire that you used was of sufficient strength to hold the door both at the...