Clark v. Chase Hotel Co.

• Decision Date: 07 September 1934
• Docket Number: No. 22477.,22477.
• Parties: MRS. CHARLES C. CLARK, APPELLANT, v. CHASE HOTEL COMPANY, A CORPORATION, RESPONDENT.
• Court: Missouri Court of Appeals

74 S.W.2d 498

MRS. CHARLES C. CLARK, APPELLANT, v. CHASE HOTEL COMPANY, A CORPORATION, RESPONDENT.

No. 22477.

St. Louis Court of Appeals. Missouri.

Opinion filed September 7, 1934.

Appeal from the Circuit Court of City of St. Louis. — Hon. Frank Landwehr, Judge.

AFFIRMED.

George G. Vest, Thomas Bond and David H. Robertson for appellant.

(1) (a) Defendant, Chase Hotel Company, demised the premises, designed and intended for use as a public Turkish bath, to the tenant for such public use, and, having, by the contract of tenancy, the complete right to make the alterations and repairs necessary therefor, continued to maintain the nuisance and to lease the Turkish bath for a consideration for such public purposes. The Hotel Company's liability is absolute. 1 Tiffany, Landlord and Tenant (1 Ed.), sec. 97, par. c, pp. 655-656; 16 R.C.L., pp. 1069-70; 36 Corpus Juris, pp. 225-226; Southwestern Gas, etc., Co. v. Thomas, 249 Fed. 325, 161 C.C.A. 333; Copley v. Balle, 9 Kan. App. 465, 60 Pac. 656; Albert v. State, 66 Md. 325, 7 Atl. 697, 59 Am. Rep. 159; Eckman v. Atlantic Lodge No. 276, B.P.O.E., 68 N.J.L. 10, 52 Atl. 293; Junkermann v. Tilyou Realty Co., 213 N.Y. 404, 108 N.E. 190, L.R.A. 1915F, 700; Barrett v. Lake Ontario Beach Impr. Co., 174 N.Y. 310, 66 N.E. 968, 61 L.R.A. 829; Fox v. Buffalo Park, 163 N.Y. 559, 57 N.E. 1109 (Aff. 21 App. Div. 321, 47 N.Y.S. 788); Swords v. Edgar, 59 N.Y. 28, 17 Am. Rep. 295; Lusk v. Peck, 132 App. Div. 426, 116 N.Y.S. 1051 (Aff. 199 N.Y. 546, 93 N.E. 377); Tulsa Entertainment Co. v. Greenless, 85 Okla. 113, 205 Pac. 179; 22 A.L.R. 602; Folkman v. Lauer, 244 Pa. 605, 91 Atl. 218; Wichita Falls Tract Co. v. Adams, 146 S.W. 271; Larson v. Calder's Park Co., 54 Utah, 325, 180 Pac. 599, 4 A.L.R. 731; Colorado Mortgage, etc., Co. v. Giacomini, 55 Colo. 540, 136 Pac. 1039, L.R.A. 1915B, 364 and note; Cristadoro v. Von Behren, 119 La. 1025, 44 So. 852, 17 L.R.A. (N.S.) 1161; Campbell v. Portland Sugar Co., 62 Me. 552, 16 Am. Rep. 503; Camp v. Wood, 76 N.Y. 92, 32 Am. Rep. 282; Joyce v. Martin, 15 R.I. 558, 10 Atl. 620; State v. Boyce, 73 Md. 469, 21 Atl. 322; Oxford v. Leathe, 165 Mass. 254, 43 N.E. 92; Meade v. Montrose, 173 Mo. App. 722; Campbell v. Portland Sugar Co., supra; Ahern v. Steele (N.Y.), 5 L.R.A. 449; Edward v. Railroad, 98 N.Y. 247; Clancy v. Byrne, 56 N.Y. 129. (2) Plaintiff's due care or contributory negligence was purely for the jury. Cluett v. Union El. L. & P. Co., 205 S.W. 72, l.c. 75 and 77; Judson v. Amer. Exp. Co. (Mass.), 136 N.E. 103. (3) The defects were the proximate cause of plaintiff's injury. Kennedy v. Independent, etc., Co., 291 S.W. 475; Jaquith v. Plumb, Inc., 254 S.W. 89; Dickson v. Railroad, 124 Mo. 140, 46 Am. St. Rep. 429, 25 L.R.A. 320.

Holland, Lashly & Donnell, Holland, Lashly & Lashly and Oliver J. Miller for respondent.

(1) In the instant case the petition states no cause of action against the landlord, because it alleges that the landlord had rented the premises to a tenant and that the appellant was on the premises as an invitee of the tenant, and it appears on the face of the amended petition that the alleged conditions complained of were open and obvious. Meade v. Montrose, 173 Mo. App. 722, 160 S.W. Rep. 11; Glenn v. Hill, 109 S.W. Rep. 27, 210 Mo. 291; Kohnle et al. v. Paxton et al., 188 S.W. Rep. 155, 268 Mo. 463; Turner v. Ragan (Mo. Sup.), 229 S.W. Rep. 809; Degnan et al. v. Doty et al. (Mo. Sup.), 246 S.W. Rep. 922; Murphy v. Dee, 190 Mo. App. 83, 175 S.W. Rep. 287; Peterson v. Smart, 70 Mo. 34. (2) The law is well settled that ordinarily where premises are leased by a tenant under an agreement of the landlord to keep in repair, the latter is not liable to an invitee of the tenant where such invitee is injured by some alleged defective condition; the only exception being where an alleged defect exists at the time of the letting, is latent, and is concealed by the landlord from the tenant under circumstances indicative of fraud on the part of the landlord. Meade v. Montrose, 173 Mo. App. 722, 160 S.W. Rep. 11; Glenn v. Hill, 109 S.W. Rep. 27, 210 Mo. 291; Kohnle et al. v. Paxton et al., 188 S.W. Rep. 155, 268 Mo. 463; Turner v. Ragan (Mo. Sup.), 229 S.W. Rep. 809; Degnan et al. v. Doty et al. (Mo. Sup.), 246 S.W. Rep. 922; Murphy v. Dee, 190 Mo. App. 83, 175 S.W. Rep. 287; Peterson v. Smart, 70 Mo. 34. (3) Because the testimony tends to show that any injuries sustained by appellant were not sustained by reason of any alleged defect in the premises at the time of the letting thereof, but by the manner in which the premises were used by the tenant and by appellant. Meade v. Montrose, 173 Mo. App. 722, 160 S.W. Rep. 11; Glenn v. Hill, 109 S.W. Rep. 27, 210 Mo. 291; Kohnle et al. v. Paxton et al., 188 S.W. Rep. 155, 268 Mo. 463; Shaw v. Butterworth (Mo. Sup.), 38 S.W. Rep. (2d) 922; Turner v. Ragan (Mo. Sup.), 229 S.W. Rep. 809; Degnan et al. v. Doty et al. (Mo. Sup.), 246 S.W. Rep. 922; Murphy v. Dee, 190 Mo. App. 83, 175 S.W. Rep. 287; Peterson v. Smart, 70 Mo. 34. (4) The character of place is not a legal classification or method of grouping that carries any legal significance. (a) The character of defect, whether it be patent or latent and concealed, is the controlling test. Bathing beaches and resorts: Beeman v. Grooms, 138 Tenn. 320; Abbott v. Alabama Power Co. (1927), 214 Ala. 281; Jackson v. Public Service (N.H. 1932), 163 Atl. 514; Frear v. Manchester Traction Co. (N.H. 1927), 139 Atl. 86, 61 A.L.R. 1280. Hotels, inns, boarding houses, restaurants: Topley v. Zelmens et al. (Cal. 1931), 5 Pac. (2d) 455; Tentl. v. B. & G. Sandwich Shops, 144 Atl. 71; Viles v. Thurberg (Wash. 1931), 2 Pac. (2d) 666; Rich v. Basterfield, 4 C.B. Rep. 782; Wilcox v. Hines, 41 L.R.A. 283; Ten Broeck v. Wells Fargo Co., 47 Fed. 690; Fellows v. Gilhauber, 82 Wisc. 639; Hutchinson v. Cummings, 156 Mass. 330; Texas & P. Co. v. Niagrum, 68 Tex. 342. Theaters and halls: Dyer v. Robinson, 110 Fed. 99; Kelley v. Woolworth & Co., 22 A.L.R. 624; Oxford v. Leathe, 165 Mass. 254. Office buildings: Hanson v. Beckwith, 20 R.I. 165, 38 L.R.A. 716. (5) A patent defect, whether arising out of construction or lack of repair, within the premises or building leased to and in possession of a tenant, is not a nuisance and cannot become one through use of the premises for any purpose, be it the one intended and for which it was demised, or some other one, as to persons within those premises and be it latent or patent. See citations under Point I and in respondent's (first) Brief; Mellon v. Morrell, 126 Mass. 545; Harte v. Jones, 287 Pa. 37; Burdick v. Cheodle, 26 Ohio St. 393.

SUTTON, C.

This is an action to recover damages for personal injuries sustained by plaintiff by a fall on the floor of the massage room in a Turkish bath located in the basement of the Chase Hotel, situate at the northeast corner of Kingshighway and Lindell Boulevard, in the City of St. Louis.

The action was originally brought by plaintiff against the Chase Hotel Company and Mrs. Emma Thomas as defendants, but at the trial plaintiff voluntarily dismissed as to defendant Thomas.

Defendant Thomas was the proprietor of the Turkish bath, and the rooms in which she operated and conducted the bath, including the fixtures, were rented by her from defendant Chase Hotel Company, which company owned the premises in which the bath was located.

The petition alleges that at the time of the letting of said premises to defendant Thomas, and at all times since, the drain pipe and floor in one of the rooms were by the negligence of defendant Chase Hotel Company defectively constructed or placed in that the drain pipe was so placed that the opening thereof was on a higher level than the surrounding floor, and the floor immediately around and adjacent to the drain pipe was so placed or laid that it was on a lower level than the mouth or opening of the drain pipe, so that the water and soap would not naturally flow or drain into said drain pipe, thereby rendering said floor wet and slippery and unsafe and dangerous for persons to walk on; that defendants knew or by the exercise of ordinary care should have known of said defective condition of said drain pipe and floor, and that same was unsafe and dangerous and likely to cause injuries to the customers of said defendant Thomas, including plaintiff, and said defendants negligently permitted said condition to continue, and negligently failed to repair the same; that on May 20, 1929, in the afternoon, plaintiff was a customer of defendant Thomas, and was being given a Turkish bath and the treatment incident thereto in said room, and that while she was taking said Turkish bath and receiving said treatment, and as the result of the negligence of defendants as aforesaid, the floor was wet and covered with soapy water, and plaintiff was thereby caused to fall and sustain the injuries for which she sues.

The cause was tried to a jury. At the conclusion of plaintiff's case in chief, the court, at the request of the defendant Chase Hotel Company, gave to the jury an instruction in the nature of a demurrer to the evidence. Thereupon plaintiff took an involuntary nonsuit as to said defendant. Having unsuccessfully moved to set aside her said involuntary nonsuit, plaintiff appeals to this court.

Appellant assigns error here upon the giving of the instruction in the nature of a demurrer to the evidence, insisting that the evidence was sufficient to take the case to the jury.

According to the testimony offered by the appellant, there were in the basement of the Chase Hotel two apartments designed for use as Turkish baths, the western of which was then used for women, and the eastern of which was used for men. North of these apartments was a long corridor, and between the two apartments there was a reception room with a door that led from the corridor into the reception room. In 1926 or 1927, defendant Thomas became a tenant from month to month of the western...