Coates v. Dewoskin

• Citation: 379 S.W.2d 146
• Decision Date: 19 May 1964
• Docket Number: No. 31546,31546
• Parties: Betty COATES, Plaintiff-Respondent, v. Wade J. DEWOSKIN, Louis Dewoskin, Sam Dewoskin and Stella Dewoskin, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 146

379 S.W.2d 146

Betty COATES, Plaintiff-Respondent, v. Wade J. DEWOSKIN, Louis Dewoskin, Sam Dewoskin and Stella

Dewoskin, Defendants-Appellants.

No. 31546.

St. Louis Court of Appeals, Missouri.

May 19, 1964.

Motion for Rehearing or to Transfer to Supreme Court Denied

June 22, 1964.

Richard M. Stout, Kent E. Karohl, St. Louis, for defendants-appellants.

Donald P. Gallop, Fred Roth, St. Louis, for plaintiff-respondent.

BRADY, Commissioner.

The verdict and judgment in the trial court in this case was for the plaintiff in the amount of $2,900.00. Among the several allegations of reversible error briefed by the defendants are two that we hold determinative of this appeal. These are the contentions that plaintiff's verdict-directing instruction was erroneously given and that the defendants' motion for a directed verdict should have been sustained. We will therefore limit our statement of the factual situation to those facts bearing upon those contentions.

The plaintiff's theory, as stated in her petition, was that there was a hole in the ceiling of the bedroom of this apartment of which the defendants knew at the time they let the apartment and which the defendants had caused to be covered by two or three layers of ceiling paper so that the plaintiff did not know of the existence; and that the existence of this hole made the ceiling unsafe and constituted a defective condition the existence of which defendants had a duty to warn plaintiff; and that she was injured by plaster falling from the ceiling.

The evidence in the light we are required to view it was that there was a hole in the ceiling plaster in one room in this apartment. This hole was there when the defendants let the premises to the plaintiff and had been covered over by some of defendants' employees by placing several layers of wallpaper over the entire ceiling. The plaster was not replaced nor was any other material used to fill the hole which was about four feet wide and three and one-half feet long. A few months before the incident occurred, plaintiff noticed water marks on the ceiling in the area of this hole. These marks caused her to put a dishpan on the second floor of the apartment directly over this area. She admitted that on occasion ('several times') the dishpan had overflowed, and the water went into the plaster ceiling of the room below. On the occasion when she was struck by the plaster she was sleeping face down in a bed which was placed in the northwest corner of the room. This was the location of the hole in the ceiling. The plaster struck her head, neck and back.

Those portions of plaintiff's verdict-directing instruction pertinent to our inquiry hypothesized that at the time of the letting there existed upon said premises a portion of the northwest corner of the ceiling in the middle room on the first floor of her apartment which she used as her bedroom, which was defective, in that it contained an open hole approximately four feet wide which was concealed by being covered over by several sheets of wallpaper; that '* * * such condition of said ceiling rendered it not reasonably safe for use * * *'; that plaintiff did not know of this condition of the ceiling and could not have discovered it by reasonable inspection; that '* * * the defendants at the time of the letting of said premises to the plaintiff knew of said condition or in the exercise of ordinary care could have known of said condition * * *'; that defendants failed to inform the plaintiff of the condition; and that '* * * said ceiling in the northwest corner of said room fell upon her body as a direct result of the said defective condition * * *.'

Among the reasons advanced by the defendants to support their allegation of error with respect to the giving of Instruction No. 1 is the contention the instruction erroneously permitted a recovery against defendants if the jury found that, in the exercise of ordinary care, the defendants could have known of the condition of the ceiling. In the case of Flournoy et al. v. Kuhn and Harry M. Fine Realty Company, Inc., Mo.App., 378 S.W.2d 264, this court held that the giving of an instruction hypothesizing the '* * * defendants knew or in the exercise of ordinary care could have known of the dangerous and not reasonably safe condition * * *' was prejudicially erroneous. In that opinion this court, by Wolfe, J., pointed out the difference in the degree of knowledge required in cases brought upon a theory of negligent repair or where the defect exists in an area under common control, on one hand, and those cases, such as Flournoy and the instant case, where the defect exists in an area under exclusive control of the tenant. In the former type of case, the hypothesization set out above is permissible. Kennedy v. Hartwig-Dischinger Realty Co., Mo.App., 201 S.W.2d 475; Taylor v. Hitt, Mo.App., 342 S.W.2d 489. In the latter type of case this court held in Flournoy the language allowing liability if the jury found the landlord could have known of the defect to constitute...