Bland v. City of St. Louis

• Decision Date: 05 May 1942
• Docket Number: 37099
• Citation: 162 S.W.2d 822,349 Mo. 597
• Parties: Walter Henry Bland v. The City of St. Louis, a Municipal Corporation, Appellant
• Court: Missouri Supreme Court

162 S.W.2d 822

349 Mo. 597

Walter Henry Bland v. The City of St. Louis, a Municipal Corporation, Appellant

No. 37099

Supreme Court of Missouri

May 5, 1942

Rehearing Denied June 17, 1942.

Appeal from Circuit Court of City of St. Louis; Hon. Joseph J Ward, Judge.

Affirmed.

Edgar H. Wayman and Jerome Simon for appellant.

(1) Plaintiff failed to prove a cause of action against the defendant because there was a total lack of proof of control of the elevator in defendant and a total lack of proof of any duty on the part of the defendant to maintain the elevator. Where landlord leases the entire premises to a single tenant complete possession and control is thereby lodged in the tenant. Eyre v. Jordan, 111 Mo. 424; Mahuken v. Gillespie, 43 S.W.2d 797; Bender v. Weber, 250 Mo. 551; Turner v. Ragan, 229 S.W. 809; Gray v. Pearline, 43 S.W.2d 802; Lawler v. Insurance Co., 68 F.2d 438; Henson v. Beckwith, 20 R. I. 165; Aiken v. Sidney Steel Scraper Co., 197 Mo.App. 673; Stair v. Sperry, 184 Iowa 540, 167 N.W. 531. Agreement to repair portion of premises does not place control of that portion in landlord. Lahtinen v. Continental Bldg. Co., 97 S.W.2d 102; Berkowitz v. Winston, 193 N.E. 343; Cullings v. Goetz, 176 N.E. 397; Corneir v. Werner, 178 N.E. 723; Kohnle v. Paxton, 268 Mo. 463; Davis v. Cities Service Co., 131 S.W.2d 865. Occasional use of elevator by Northdurft, the harness maker, did not show that control of elevator was in defendant. Coats v. Meriwether, 144 Mo.App. 89. There was no reservation of control established by the lease. Miles v. Robertson, 258 Mo. 717; Beheret v. Myers, 240 Mo. 58; Pearson v. Carson, 69 Mo. 550; Wright-Dalton-Bell-Anchor Store Co. v. Barron, 232 S.W. 1088; Crosson v. Noll, 120 S.W.2d 189. (a) There was no evidence that the alleged defective condition of the elevator was or should have been known to the defendant. Henry v. First Natl. Bk. of K. C., 115 S.W.2d 126; McGinley v. Alliance Trust Co., 168 Mo. 257; Orcutt v. Cent. Bldg. Co., 99 S.W. 1062, 8 L. R. A. (N. S.) 929; Restatement of the Law of Torts, sec. 361; 16 R. C. L. 1042; 25 A. L. R. 1294. (b) The plaintiff was guilty of contributory negligence as a matter of law. O'Neil v. St. Louis, 239 S.W. 94; O'Donnell v. Patton, 117 Mo. 13; Cox v. Bondurant, 220 Mo.App. 948; Morris v. Kansas City Light & Power Co., 302 Mo. 475; Boland v. Thompson, 142 S.W.2d 790. (2) Instruction 1 is erroneous because said instruction is not clear and concise but is ambiguous, vague and incomprehensible so that its effect was to confuse and mislead the jury. Knapp v. Hanley, 153 Mo.App. 169; Luft v. Strobel, 18 S.W.2d 721, 322 Mo. 955; Landon v. United Rys. Co. of St. Louis, 237 S.W. 496. (a) Said instruction submitted to the jury issues which had not been proven and not based upon or authorized by the pleadings and evidence. State ex rel. Banks v. Hostetter, 125 S.W.2d 835; Neal v. Curtis & Co., 329 Mo. 459; Birdsong v. Jones, 30 S.W.2d 1094; Bach v. Ludwig, 109 S.W.2d 724. (b) Said instruction is erroneous because it assumes fact not in evidence, towit, that the defendant had control of the elevator and hence a duty as to its safe maintenance. See authorities cited under Point (1). Kickham v. Jenkins, 104 S.W.2d 234; Alexander v. Hoenschel, 66 S.W.2d 164.

Reardon & Lyng and John H. Martin for respondent.

(1) The demurrer to the evidence requested by appellant at the close of plaintiff's case was properly overruled, for the evidence clearly demonstrated that the elevator was used in common by the appellant and respondent's employers. 16 R. C. L., p. 1042; American Law Institute, Restatement of Torts, sec. 361; Henry v. First Natl. Bank of Kansas City, 115 S.W.2d 126. (a) Parol evidence may be used to establish a change or modification of a contract. Prior v. Kiso, 81 Mo. 241; Koenig v. Brewing Co., 38 Mo.App. 186; Smith v. Thurston, 19 Mo.App. 48. (b) To establish liability on the part of appellant, it is not necessary to show actual knowledge of the defective condition. Constructive knowledge will suffice for that purpose. 16 R. C. L., p. 1042; American Law Institute, Restatement of Torts, sec. 361; Henry v. First Natl. Bank of Kansas City, 115 S.W.2d 126; Pate v. Big Bend Quarry Co., 138 S.W.2d 709. (2) Plaintiff was not contributorily negligent as a matter of law. Parton v. Phillips Petroleum Co., 107 S.W.2d 167; Cento v. Security Bldg. Co., 99 S.W.2d 1; Howard v. S. C. Sacks Co., 76 S.W.2d 460. (3) The giving of Instruction 1 was not error. The instruction did not assume controverted facts and contained all of the elements essential for a recovery in this type of case.

OPINION

Leedy, J.

This is an action for damages for personal injuries sustained by plaintiff in the fall of a freight elevator by which he and an automobile wherein he was seated were precipitated from the second to the first floor of a warehouse. He had a verdict for $ 17,500.00, and defendant had appealed from the judgment entered thereon.

Defendant stood on its demurrer offered at the close of plaintiff's case. The injuries were severe and permanent, and defendant does not question the amount of the award, if plaintiff is entitled to recover at all. The refusal of the peremptory instruction and alleged error in plaintiff's instruction No. 1 are the two assignments made on this appeal, and of these the matter of chief insistence is that the demurrer should have been sustained for the reasons: (1) That there was a total lack of proof of control of the elevator in defendant, and a total lack of proof of any duty on its part to maintain the elevator; (2) That there was no evidence that the alleged defective condition of the elevator was or should have been known to defendant, and (3) That plaintiff was guilty of contributory negligence as a matter of law.

Plaintiff, a colored man, thirty-five years of age, was employed by General Motors Corporation (Buick Division), and worked principally at its plant located at Vandeventer and West Pine Boulevards, in the City of St. Louis. The casualty occurred on March 31, 1939, at a two-story building located at 3843-3865 Forest Park Boulevard, owned by said city, and referred to in the testimony as the "city stables." It was so known because formerly devoted to use as a stable for the city's horses and wagons. Plaintiff's employer was using the building for the storage of automobiles, under a written lease from the city, dated February 28, 1939, which lease will be hereinafter discussed.

Plaintiff and his foreman, one Kreinheter, went to said premises on the day in question for the purpose of obtaining an Oldsmobile car which was stored on the second floor. Plaintiff had theretofore removed cars from the first floor of the building, but he had never had occasion to remove one from the second floor, nor to use the elevator. He and his foreman proceeded to the second floor by using the stairway. They positioned the elevator at the second floor level, and set the brake. The elevator was an obsolete, hand-operated type, without safety devices, and known as a carriage elevator, originally designed to carry carriages or light wagons, and with a rated capacity of 4000 pounds, according to the inspection certificate thereon issued by the city. After positioning the elevator, plaintiff got in the automobile, and started to drive it on the elevator platform. What transpired thereafter is reflected by the following excerpts from plaintiff's testimony: "As I put the front wheels of the car on the elevator, it dropped about six inches; I grabbed the emergency brake on the car and stopped it immediately, got out of the car and went over to Herb [Kreinheter]. He said, maybe the brake wasn't holding; he tried to pull the brake and he couldn't move it; then we released the brake a little and pulled the large rope there.

"Q. That is on the pulley wheel? A. Yes. We pulled the elevator level with the floor, then we both tried to pull this brake as tight as we could, which we did. Mr. Northdurft [a city employee] was standing there.

"Q. Did he assist in any way? A. Yes, sir, all three of us pulled on that rope on the elevator.

"Q. On the brake rope? A. Yes. I walked back around to get the car, and Herb was standing there with his hand on the brake rope, and I got all the car on the elevator, all four wheels, except my back bumper, when the elevator gave way, and when the elevator gave way, my back bumper struck the floor, and the car did a nose dive and caught up with the elevator and straightened up before it hit the bottom. After it hit the bottom, I was out."

Plaintiff introduced in evidence a lease between the city, as lessor and plaintiff's employer, as lessee, dated February 28, 1939, purporting to lease "that certain brick building known as 3843-3865 Forest Park boulevard, St. Louis, Missouri, with appurtenances." It provided that said building was "to be used for the storage of automobiles commencing February 28, 1939, and expiring March 31, 1939," and thereafter on a month to month basis until cancelled in the manner therein provided. The lease stipulated that "the Lessor shall keep in repair the roof and exterior of the building . . . and the elevator or elevators," with a provision for reimbursing the lessee for repairs in the event of the lessor's failure to timely make the same. Under this showing, defendant contends that it is not liable, and invokes the doctrine of such cases as Eyer v. Jordan, 111 Mo. 424, 19 S.W. 1095; Mahnken v. Gillespie, 329 Mo. 51, 43 S.W.2d 797; Bender v. Weber, 250 Mo. 551, 157 S.W. 570; Turner v. Ragan (Mo.), 229 S.W. 809. Plaintiff's action is not bottomed on any breach of the city's covenant to repair, but rather on the theory that the latter was in possession of the premises, and in connection therewith maintained and...