Byers v. Essex Inv. Co.

• Decision Date: 02 March 1920
• Docket Number: No. 20770.,20770.
• Citation: 281 Mo. 375,219 S.W. 570
• Parties: BYERS v. ESSEX INV. CO.
• Court: Missouri Supreme Court

219 S.W. 570

281 Mo. 375

BYERS v. ESSEX INV. CO.

No. 20770.

Supreme Court of Missouri, Division No. 1.

March 2, 1920.

Appeal from St. Louis Circuit Court; Thos. C. Hennings, Judge.

Action by Arthur H. Byers against the Essex Investment Company. From a judgment for defendant, plaintiff appeals. Affirmed.

M. D. Mugan and F. X. O'Brien, both of St. Louis, for appellant.

Percy Werner, of St. Louis, for respondent.

BLAIR, P. J.

Appellant and his wife occupied rooms on the second floor of a building owned by respondent. The wife fell from the balcony, and died as a result of her injuries. This is an action by the husband for damages for her death. The fall resulted from a breaking of a railing against which deceased leaned.

The petition charges, among other things, that—

"Said defendant corporation, at some time during the summer and before the 15th day of November, 1915, by and through its agents and employés, made repairs on the said barrier, balustrade, or railing that surmounts, and partially surrounds, the said balcony, but did the work of repair in such a negligent and careless manner that the said balcony and the said barrier, balustrade, or railing was left in, and remained in, a weak, defective, and insecure condition, dangerous to people who had occasion to use and occupy said balcony. Plaintiff states further that the said Mrs. Ruby Byers, the wife of plaintiff, while lawfully on said balcony, on the 21st day of June, 1916, and within less than six months before the filing of this suit, and while in the exercise of reasonable care for her own safety, was caused to fall and be thrown from said balcony onto and against the brick pavement on the ground below, by the breaking away of the weak, defective, insecure, and dangerous barrier, balustrade, or railing aforesaid, and to suffer" injuries which caused her death.

The case was submitted on an agreed statement of facts, which is as follows:

"(1) Plaintiff was the husband of Mrs. Ruby Byers; that the said Ruby Byers came to her death on or about the 28th day of June, 1916, by reason of falling from a second story porch of a residence at No. 1609 Olive street, in the city of St. Louis, on or about the 21st day of June, 1916, and about 3:15 p. m.; that at the time of the said occurrence the said Mrs. Ruby Byers had gone from her apartment out onto the said porch with an ordinary sized Pet milk can, and went to the railing near the northeast corner of said porch on the eastern side thereof, with the intention of throwing said can out onto a garbage pile in the yard below, and that, leaning against the top rail of said porch,' the section of said rail at said north end of the porch gave way and broke, allowing her to be precipitated to the ground below, a distance of about 15 feet, from which she sustained injuries which resulted in her death.

"(2) Plaintiff was a month to month tenant of one John Trundle, the lessee of said building under written lease from the owner thereof, the defendant in this action. Copy of said lease is hereto attached and made part hereof and marked `Exhibit 1.' The said lease was in full force and effect at the time of said accident, except as to a modification thereof with respect to the use of the third story thereof and the amount of the rental, which modification was in writing, and is likewise attached hereto, and marked `Exhibit 2.' Attached hereto, marked `Exhibit 3,' is a plat of the second floor of said residence, room No. 6, as shown thereon, being the room rented by Trundle to plaintiff, and the diagram also showing the balcony in question. The railing on the eastern edge of said balcony was in five sections of about seven feet each. The defendant had made certain repairs to the said railing during the month of August, 1915, but the top rail of the particular section that broke and allowed plaintiff's wife to fall to the ground was not replaced at said time by new timber. Defendant had knowledge of the fact that it was to be used as a rooming house when it leased the premises to Trundle.

"(3) Plaintiff entered upon his subtenancy under Trundle and moved into said apartment No. 6 on the 13th day of November, 1915, and continued a month to month tenant of the said Trundle down to the time of the accident in June, 1916. No further or other repairs were made to said porch subsequent to August, 1915.

"(4) Plaintiff's wife was at the time of her death 37 years of age and in reasonably good state of health, and kept house for the plaintiff. There were no children by the marriage of plaintiff to the deceased.

"None of the admissions herein contained are in any wise to affect either party, or to be regarded as made, except for the purpose of the submission of this controversy."

The lease referred to in the agreed statement of facts is dated March 1, 1915. By it respondent leased to John Trundle the property in question. By its terms the lease expired February 28, 1917. It provides that the property is to be used as a "dwelling," and the lease "shall not be assigned, nor shall said premises, or any part thereof, be let or underlet, or used or permitted to be used, for any purpose other than above provided, without the written consent of the lessor first indorsed herein," and further provides that—

"The lessee agrees to...