Burton v. Rothschild
| Decision Date | 27 August 1943 |
| Docket Number | 38466 |
| Citation | 173 S.W.2d 681,351 Mo. 562 |
| Parties | Ruby Burton, Appellant, v. Harry Rothschild |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court; Hon. Ben Terte, Judge.
Affirmed.
Charles M. Miller for appellant.
(1) The defect was negligent, original construction and constituted a dangerous condition, trap or pitfall, and under the surrounding circumstances was a constant and continuing menace and nuisance to those using the steps for the purposes intended, and likely to cause over-balancing and injury by falling to anyone using the steps, and did cause plaintiff to fall and be seriously injured whilst stepping from the top step to the second step. Morelock v. De Graw, 234 Mo.App. 303, 112 S.W.2d 126. (2) The defect had existed for some time and was known to defendant or could have been known, in the exercise of due care, when defendant leased the premises to Marie Roselli, and defendant was liable to plaintiff for such defect and condition. This is not a case of the stairway becoming in disrepair, but one of original defective and dangerous construction, which the owner caused and is responsible for. Stoetzele v. Swearingen, 90 Mo.App. 588; Mancuso v. Kansas City, 74 Mo.App. 138; Taylor on Landlord and Tenant, sec. 175. (3) The duty and obligation of defendant, owing to plaintiff was that of a "third party." 1 Tiffany's Landlord and Tenant p. 697; White v. Montgomery, 58 Ga. 204; Peterson v. Bulion-Beck & Champ. Min. Co., 33 Utah 20, 91 P. 1095; Eyer v. Jordan, 111 Mo. 424, 19 S.W. 1095. (4) Should the court, however, reach the conclusion plaintiff was not a "third party" as to defendant with respect to the flight of 4 steps, then the defect, trap or pitfall and nuisance, being in a semi-public place, defendant would still be liable to plaintiff, under the rule announced in the recent following cases: Wood v. Prudential Ins. Co., 4 N.W.2d 617; Webel v. Yale University, 125 Conn. 515, 7 A.2d 215. (5) The defect, trap or pitfall and nuisance, being of original construction and existing at the time of the leasing, was not so apparent to a prospective tenant in the usual examination with the purpose of renting, and having the right to rely on the superior knowledge and experience of the owner; such would come under the rule of being a hidden or unobservable condition, of which the defendant knew or could have known in the exercise of due care, making defendant liable, even to a tenant, much less to one who bore no such relation, and only occupied an apartment on another floor. Whitely v. McLaughlin, 183 Mo. 160, 81 S.W. 1092.
Clay C. Rogers and Mosman, Rogers, Bell & Conrad for respondent.
(1) Plaintiff, being a sub-tenant and invitee of defendant's tenant, has no greater right than defendant's tenant would have had. Meade v. Montrose, 173 Mo.App. 722, 160 S.W. 11; Mahnken v. Gillespie, 329 Mo. 51, 43 S.W.2d 797; Bender v. Weber, 250 Mo. 551, 157 S.W. 570; McKenzie v. Cheetham, 83 Me. l. c. 550, 22 A. 470; Kohnle v. Paxton, 268 Mo. 463, 188 S.W. 155; Marcheck v. Klute, 133 Mo.App. 280, 113 S.W. 654; Peterson v. Smart, 70 Mo. 34. (2) Since the alleged defect of the stairway was open and obvious and not concealed or hidden at the time of the lease by defendant to Marie Rosselli, he owed no duty to either the tenant or the plaintiff, her sub-tenant, in respect thereto and is not liable for any damages resulting therefrom. Turner v. Ragan, 229 S.W. 809; Kohnle v. Paxton, supra; Meade v. Montrose, supra; 36 C. J. 206; Griffin v. Freeborn, 181 Mo.App. 203, 168 S.W. 219; 1 Taylor on Landlord & Tenant (9th Ed.), secs. 175 (a), 175 (b); Peterson v. Smart, 70 Mo. 34; Logsdon v. Central Dev. Assn., 233 Mo.App. 499, 123 S.W.2d 631; Clark v. Chase Hotel Co., 230 Mo.App. 739, 74 S.W.2d 498; Eyer v. Jordan, 111 Mo. 424, 19 S.W. 1095; Whitely v. McLaughlin, 183 Mo. 160, 81 S.W. 1094; Bender v. Weber, supra.
Westhues, C. Bohling and Barrett, CC., concur.
This is a damage suit in which plaintiff asks judgment in the sum of $ 15,000.00 for personal injuries sustained as a result of a fall on a stairway of defendant's apartment building. The trial court sustained a demurrer to the petition and plaintiff appealed.
The facts, as alleged in the petition, briefly stated are Defendant Rothschild was the owner of an apartment building three stories in height containing six apartments. A stairway in the center of the building leading to the second and third floors was the only means of ingress and egress. At the second floor there was a short stairway of four steps leading off the main stairway to the rear of the apartments on that floor. The tenants of the third floor had no occasion to use this short stairway. On September 1, 1940, the building was leased by Rothschild to one Marie Roselli, who in turn sub-let the apartments to various parties. Plaintiff rented an apartment on the third floor of the building on February 1, 1941. All the leases were from month to month. Plaintiff's terms of rental included a furnished apartment and also heat and electric lights. Marie Roselli had employed a manager who lived on the first floor of the apartment building. On March 26, 1941, the refrigerator and electric lights in plaintiff's apartment were out of order. The manager of the building instructed plaintiff to leave her key with a Mr. Ryan, who occupied an apartment on the second floor, so that Ryan could enter the apartment and do the repairing while plaintiff was at work. About 7:00 a. m. plaintiff descended the steps leading from her apartment to the second floor and left the key with Mr. Ryan. On leaving the Ryan apartment plaintiff went by way of the short stairway. She fell on the second step and continued to fall to the main stairway and on down to the first floor causing her serious injuries. The petition alleged that the stairways were constructed of wood and the treads were of a uniform depth of 7 3/4 inches, except the first step of the shorter stairway which was only 4 3/4 inches; that as plaintiff descended this stairway she fell on the second step because it was three inches deeper than the first step; that there was no railing on either side of the stairway; that plaintiff had never used these steps before. It was also alleged that the short tread constituted a dangerous trap or pitfall; that defendant had knowledge of its existence and that this condition was there at the time the building was leased by defendant to Roselli.
Respondent briefed two points, either of which he claims to be sufficient to sustain the ruling of the trial court. First, that "plaintiff, being a sub-tenant and invitee of defendant's tenant, has no greater right than defendant's tenant would have had"; second, that the alleged defect, being open and obvious, could have been discovered by an ordinary inspection and therefore defendant is not liable. In respect to the first point appellant contends that plaintiff must be treated as a third party; that the short stairway not being a means of ingress and egress to plaintiff's apartment the relation of tenant has no bearing on the case. Let us assume that the necessity of plaintiff attempting to use the defective stairway did not grow out of the use of her apartment. However, plaintiff went to the Ryan apartment on the invitation or direction of the manager of the building. Her mission was for her own benefit and on business which concerned plaintiff Burton, Ryan the occupant of the apartment of the second floor and the manager of the building. It was the duty of the manager to keep the refrigerator in repair. Plaintiff desired it to be repaired. Ryan was to do the work. The defendant Rothschild was in no way interested. The query then is, what was the status of plaintiff when on this mission? Was she not at least an invitee and must her right of recovery not be the same as if her immediate landlord, in this case Miss Roselli, had met with the unfortunate accident? We think so. The dispute between plaintiff and defendant in their briefs is not as to the law of the case but as to how plaintiff is to be classified. Both parties cited Tiffany's work on Landlord and Tenant. In vol. 1, sec. 96, page 650, the author in speaking of an owner of property makes the following observation:
There are cases holding to the contrary, but the rule is supported by abundant authority including cases from this state. See Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369, l. c. 370 (3-4); Eyer v. Jordan, 111 Mo. 424, 19 S.W. 1095; Meade v. Montrose, 173 Mo.App. 722, 160 S.W. 11, syllabus 1. The same author at page 651 has the following to say:
The defect in the steps, as pleaded in plaintiff's petition was open and obvious. It was such as we may presume the tenant Roselli would have discovered in her daily routine of attending to the leased premises. Eyer v. Jordan, 111 Mo. 424, 19 S.W. 1095,...
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