Carson v. Quinn

• Decision Date: 03 December 1907
• Citation: 127 Mo. App. 525,105 S.W. 1088
• Parties: CARSON v. QUINN.
• Court: Missouri Court of Appeals

105 S.W. 1088

127 Mo. A. 525

CARSON v. QUINN.

St. Louis Court of Appeals. Missouri.

December 3, 1907.

1. PRINCIPAL AND AGENT — LIABILITIES TO THIRD PERSONS—WRONGFUL ACTS OF AGENT.

An agent, while liable only to his principal for nonfeasance, is liable to third persons for misfeasance resulting in injury to them.

2. SAME.

Where an agent has complete control of a tenement house, and constructs a new walk in the court, leaving a large hole in the walk,

and plaintiff, a new tenant, without previous knowledge of the existence of the hole, stepped into it after dark and was severely injured, it is misfeasance of the agent rendering him liable, and not a mere nonfeasance.

3. SAME—ACTIONS—PLEADING—VARIANCE.

In an action by a tenant against the agent of the landlord for injuries sustained by stepping into a hole left in a walk, a variance between the allegation that defendant was the owner of the premises and as such liable for the injury, and the proof that he was agent of the owner, and as such liable for the injury, is not such a failure of proof as can be taken advantage of under Rev. St. 1899, § 798 [Ann. St. 1906, p. 760], providing that where the allegations of a pleading are unproved, not in some particulars only, but in its entire scope and meaning, it is not a variance, but a failure of proof.

4. PLEADING—VARIANCE—STATUTES.

Under Rev. St. 1899, § 655 [Ann. St. 1906, p. 671], a variance between pleading and proof is material only when it has misled the adverse party, to his prejudice, and can be taken advantage of only by allegation to that effect and an affidavit showing wherein he was misled.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action by Izora Carson against James J. Quinn. From a judgment for plaintiff, defendant appeals. Affirmed.

Paul Dillon, for appellant. Morrow & Kelly, for respondent.

BLAND, P. J.

The action was originally brought against three defendants, but was dismissed as to two of them, leaving James J. Quinn sole defendant. Omitting caption, the petition is as follows: "Plaintiff states that defendants were, at all the times hereinafter mentioned, the owners of a certain tenement house in the city of St. Louis, Mo., known as No. 911 North Eleventh street, in the rear; that said tenement house was divided off into flats or apartments, to be rented to different tenants, each tenant renting and occupying exclusively a flat or suite of rooms, and using in common a court or passageway in front of the flats or apartments on the first floor for ingress and egress, and as a way to or from the closet or privy, which was at the north end of the court or passageway, the rooms or apartments alone being in the exclusive possession and use of the respective tenants, while the said court or passageway in front of the flat or apartments of said tenement house was in the possession and control of the defendants, the owners, and was not exclusively appurtenant to the flat or apartment of any one tenant, but was designed and used by all the tenants in common for ingress and egress and for a way to and from the closet or privy used in connection with said flats or apartments, and to and from the suites or apartments, respectively; that said walk or passageway at all times hereafter mentioned was in possession and control of the defendants; that the plaintiff's father, S. S. Hunt, rented from the defendants one of said flats or apartments of said tenement house situated on the first floor of the south end thereof, and that the plaintiff at the time of her injury hereinafter described lived in it with him as a member of his family; that on the ______ day of August, 1906, and about 10 days prior to the plaintiff's injury, the defendants constructed a granitoid walk or pavement along and in said court or passageway in front of said tenement house and the flats or apartments thereof, and carelessly and negligently left a hole in the same about 2½ feet long, by 2 feet wide, and 10 inches deep, which rendered or made said walk or pavement unsafe and dangerous for persons traveling over said walk or pavement, and that said walk or pavement remained in said unsafe and dangerous condition for a long time, and that the defendants carelessly and negligently neglected and failed to cover, guard, light, fill up, or otherwise protect said hole in said walk or pavement, and negligently and carelessly permitted the same to remain open and in an unsafe and dangerous condition for persons traveling over the said walk or pavement up to September 9, 1906, and at the time plaintiff was injured as hereafter set out, and that the defendants knew or by the exercise of ordinary care could have known of the unsafe and dangerous condition of said walk or pavement in time by the exercise of ordinary care to have covered, guarded, lighted, filled up, or protected the same; that on the 9th day of September, 1906, the plaintiff, while a member of the family of the said S. S. Hunt, her father, the tenant of the defendants aforesaid, and while traveling on said walk or pavement in said court or passageway going from said fiat or apartment to the closet or privy in the rear, in the night-time, and while it was dark, and without knowledge of said hole and dangerous condition of said walk or pavement, and while in the exercise of ordinary care for her own safety and without negligence on her part, stepped and fell and was precipitated into said hole in said walk or pavement, and was thrown down on the hard granitoid walk, and against the edge of the said hole and by reason thereof was seriously hurt and permanently injured, in this: at the time plaintiff was pregnant with a quick child about seven months old, and plaintiff was hurt and bruised and injured in her abdomen, side, and womb, the child's head was mashed and bruised, and plaintiff was thereby caused to have a miscarriage, and give premature birth to said child, and said child, though born alive, died in a few hours after its birth of said injuries to its head, and the plaintiff was made sick and sore and caused to suffer great physical pain and mental anguish, and her uterus permanently displaced and otherwise permanently injured, and her health impaired, by reason of which she will continue to suffer great physical pain and mental anguish in the future, and has been permanently disabled from making a living; to her damage in the sum of forty-five hundred ($4,500) dollars, for which sum with costs of this suit plaintiff prays judgment against defendants." The answer was a general denial. Plaintiff's evidence tends to prove all the material allegations of the petition, except the allegation that James J. Quinn was the owner of the property described in the petition, and on which plaintiff fell and was injured. On the issue of ownership, the evidence shows the title of the property to be in one Joseph Byrne, defendant's brother-in-law, a single man, who follows the races, and who seems to have no fixed place of abode. Defendant testified he was the agent of Byrne, his brother-in-law, and had $5,000 of his money in his possession to invest for him, and bought the property at a commissioner's sale as an investment for Byrne, paying in Byrne's $5,000 and $6,000 of his own money on the purchase price; that afterwards, on Byrne's approval, he borrowed $15,000 on the property, reimbursed himself out of the loan for the $6,000 he had paid on the purchase price, and expended about $7,500 to improve the property; that he made all the contracts for the improvements, superintended the work, and had exclusive possession and control of the property, and superintended and directed the improvements made upon it as agent for Byrne. The court described in the petition was common to all the tenants. The hole where plaintiff was hurt was about three feet square and ten inches deep, and was made for a trap to a sewer. Granitoid was laid over the...