Byers v. Essex Investment Company

• Decision Date: 02 March 1920
• Citation: 219 S.W. 570,281 Mo. 375
• Parties: ARTHUR H. BYERS, Appellant, v. ESSEX INVESTMENT COMPANY
• Court: Missouri Supreme Court

219 S.W. 570

281 Mo. 375

ARTHUR H. BYERS, Appellant, v. ESSEX INVESTMENT COMPANY

Supreme Court of Missouri, First Division

March 2, 1920

Appeal from St. Louis City Circuit Court. -- Hon. Thos. C. Hennings Judge.

Affirmed.

M. D Mugan and F. X. O'Brien for appellant.

(1) A landlord may be under no obligation to make repairs on the demised premises, but if he undertakes nevertheless to make repairs, and the same are negligently made, he is responsible in damages for the injuries resulting therefrom. 1 Tiffany on Landlord & Tenant, pp. 660, 649; Finer v. Nichols, 158 Mo.App. 539; Little v. McAdaras, 38 Mo.App. 187; 2 McAdam on Landlord & Tenant, p. 1613; 2 Kent (14 Ed.), p 570; Mitchell v. Plautt, 31 Ill.App. 149; Mann v. Fuller, 63 Kan. 664; Gregor v. Cady, 82 Me. 131; Gill v. Middleton, 105 Mass. 477. (2) Whether the landlord is bound to repair his leased or demised premises or not, if he undertakes to make repairs, and the work of repair is done unskillfully or negligently, he is liable in damages to his tenant, to a subtenant and to all other persons rightfully on the premises by invitation or otherwise, for injuries arising therefrom. Grant v. Tomlinson, 138 Mo.App. 222; Hardt v. Koenig, 137 Mo.App. 589; 1 Tiffany on Landlord & Tenant, p. 649, sec. 96. (3) The circumstances attendant upon an accident are sometimes of such a character as to justify the jury in inferring negligence as the cause of the accident, in conformity with the maxim and under the doctrine of res ipsa loquitur. 34 Cyc. 1665; Blanton v. Dold, 109 Mo. 64; Ash v. Woodward, 199 S.W. 994, 997; Bryne v. Boston Woven Hose Co., 191 Mass. 40; Mooney v. Lumber Co., 154 Mass. 407; 29 Cyc. 590, 623; Ryan v. Fall River Iron Works Co., 200 Mass. 188; Mullen v. St. John, 57 N.Y. 567; Volkmer v. M. R. Co., 134 N.Y. 418; Judson v. Giant Powder Co., 107 Cal. 549; Chaperon v. Portland Electric Co., 41 Ore. 39. (4) The doctrine of res ipsa loquitur is not limited to any particular class of cases. Thompson on Negligence, sec. 3885. (5) Under the doctrine of res ipsa loquitur, negligence will be presumed where the accident and injury are caused by an act which, in the ordinary course of things, would not have resulted in injury, if due care had been used in its performance. Schuler v. Omaha R. Co., 87 Mo.App. 618; Moore v. Parker, 91 N.C. 275. (6) Where the defendant owes the duty to plaintiff to use due care, and the thing causing the accident is shown to be under the management of the defendant or his servants, and the accident is such that, in the ordinary course of things, does not occur if those who have the management or control use proper care, the happening of the accident, in the absence of evidence to the contrary, is evidence that it arose from the lack of requisite care. Kahn v. Trist-Rosenberg Cap. Co., 139 Cal. 340; Bevis v. Baltimore R. Co., 26 Mo.App. 19; Cyclopedia of Law and Procedure, 29 Cyc. 591; Davis v. Baltimore R. Co., 26 Mo.App. 19; Armour v. Golwoska, 95 Ill.App. 492; Kahn v. Burett, 42 Misc. (N. Y.) 541, 543; Griffin v. Manice, 166 N.Y. 188. (7) The maxim res ipsa loquitur was originally limited to cases of absolute duty or an obligation practically amounting to that of insurer under a contractual relation, but has been extended to actions sounding in tort, where no contractual relation existed, so that when the physical facts of an accident themselves create a reasonable probability that it results from negligence, the physical facts are themselves evidential and furnish what the law terms "evidence of negligence" in conformity with the maxim res ipsa loquitur. 29 Cyc. 591, 592; Chenall-Palmer Brick Co., v. Ratteree, 57 Ark. 429; Houston v. Brush, 66 Vt. 331.

Percy Werner for respondent.

(1) The agreed statement of facts stands in lieu on a special verdict. If there is any omission of facts necessary to a recovery, no judgment can be based thereon. City of Stanberry v. Jordan, 145 Mo. 372; Folk v. St. Louis, 250 Mo. 138; Isenberg v. Anchor Line, 13 Mo.App. 415. (2) This is not a res ipsa loquitur case. The situation is susceptible of proof. Patton v. Public Service Ry. Co., 227 F. 810. (3) No obligation to repair rests on the landlord, in the absence of an agreement. Vai v. Weld, 17 Mo. 232; Peterson v. Smart, 70 Mo. 234; Ward v. Fagan, 101 Mo. 669. (4) The landlord is not liable for injuries to sub-tenants of his lessee arising from the defective condition of premises -- certainly not for anything less than a nuisance, which is not pleaded here. Quay v. Lucas, 25 Mo.App. 4; Peterson v. Smart, 70 Mo. 34; Saretsky v. Steinberg, 133 N.Y.S. 925; Thomas v. Lane, 221 Mass. 447; Malone v. Laskey, 2 K. B. 141. (5) Where an injury is occasioned by want of due care and skill in doing what one has promised to do, an action can only be maintained in favor of the party relying on such promise and injured by breach of it. Consequently there can be no recovery in this case for a double reason: first, because the promise was not made to plaintiff; second, because the repairs were made before plaintiff entered upon his tenancy. Glenn v. Hill, 210 Mo. 298. (6) Plaintiff, not being entitled to recover for breach of contract to repair, because not privy to contract, must sue in tort. Here he cannot recover as for mere negligence in the making of repairs. (a) Because the repairs were made before plaintiff entered on his tenancy. Quay v. Lucas, 25 Mo.App. 407; Stuerger v. Van Sicklen, 132 N.Y. 499; Ahern v. Steele, 115 N.Y. 203; Brady v. Klein, 133 Mo. 422. (b) Because there is no evidence that the defendant knew of the defective condition. Whiteley v. McLaughlin, 183 Mo. 160. (c) There can be no recovery as for maintenance of a nuisance, first, because it is not pleaded; second, because it was not in fact a nuisance. (d) There is no evidence of negligence on the part of respondent.

OPINION

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 employees, 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 on to 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 fifteen 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 sub-tenancy 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.

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