Bonello v. Powell

• Citation: 223 S.W. 1075
• Decision Date: 26 June 1920
• Docket Number: Mo. 13627.
• Parties: BONELLO v. POWELL et al.
• Court: Court of Appeal of Missouri (US)

223 S.W. 1075

BONELLO v. POWELL et al.

Mo. 13627.

Kansas City Court of Appeals. Missouri.

June 26, 1920.

Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.

"Not to be officially published."

Action by Samuel Bonello against W. L. Powell and another. From a judgment for plaintiff, defendants remanded.

Ben T. Hardin, of Kansas City, for appellants.

Milton J. Oldham, of Kansas City, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $750, and defendant has appealed.

The facts show that defendant Witschner was the owner of improved real estate at 620 Campbell street, in Kansas City, Mo., having a frame residence building in the rear; that he employed W. L. Powell, a real estate agent, to sell the same; that plaintiff became a prospective purchaser; and that Powell and Witschner were to meet plaintiff and some others to show them the property. Witschner did not appear, but Powell, as Witschner's agent, showed the property to plaintiff. Plaintiff could not talk English, so an interpreter, one Nuccio, was employed. Witschner told Nuccio that Powell would show the property. There was a house to the north of Witschner's house. The two houses were joined together by a wooden porch, which was constructed on the outside of the houses and attached to the third floor of Witschner's house, some distance from the ground. Powell invited plaintiff, Nuccio, and another, who was present, to go with him to inspect the property. He led the way up the stairway, which was attached to the porch, and onto the porch. While they were on the porch it gave way and fell with plaintiff, resulting in his injury. It was shown that the porch with the stringers and braces that supported it was badly decayed, doty, and in a rotten condition. Both Powell and Witschner admitted that they knew it was in bad condition. There was testimony on the part of plaintiff, however, that the steps leading up to the porch did not appear to be so. There was evidence that no notice or warning was given in reference to the condition of the porch, and that the porch "looked pretty good." There was evidence that Powell stated to plaintiff that there was nothing to fear in going onto the porch; that it was in good condition.

Defendant Witschner (hereinafter referred to as defendant) urges that his demurrer to the evidence should have been sustained; that the evidence fails to make out a case against defendant. There is no merit in this contention. Plaintiff did not go upon the premises from motives of curiosity or for his own private business, unconnected with the business of the owner, but was invited there by defendant and his agent, Powell, for a purpose connected witn defendant's own benefit; that is, to promote the sale of defendant's real estate. The rule is stated in 1 Thompson on the Law of Negligence, § 985:

"The owner or occupant of land is liable in damages to those coming to it, using due care, at his invitation or inducement, express or implied, on any business to be transacted or permitted by him, for an injury occasioned by the unsafe condition of the land, or of the...