Combow v. Kansas City Ground Inv. Co.

• Citation: 218 S.W.2d 539,358 Mo. 934
• Decision Date: 14 February 1949
• Docket Number: 41150
• Parties: Pauline Combow, Appellant, v. Kansas City Ground Investment Company, a Corporation, Respondent
• Court: United States State Supreme Court of Missouri

218 S.W.2d 539

358 Mo. 934

Pauline Combow, Appellant, v. Kansas City Ground Investment Company, a Corporation, Respondent

No. 41150

Supreme Court of Missouri

February 14, 1949

Rehearing Denied March 14, 1949.

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Affirmed.

Walter W. Calvin for appellant.

(1) The breach of the defendant's duty, under its contract, to properly and skillfully recondition and rehabilitate the dwelling house in question; and the personal injuries which the plaintiff sustained in consequence of such breach, gave rise to the action in tort. 38 Am. Jur., sec. 20, page 661 et seq.; 52 Am. Jur., secs. 26, 27, p. 378, et seq.; Graff v. Lemp Brewing Co., 130 Mo.App. 618, 109 S.W. 1044; Ellyson v. Missouri P. & L. Co., 59 S.W.2d 714; Lowery v. Kansas City, 337 Mo. 47, 85 S.W.2d 104; Hull v. Gillioz, 334 Mo. 1227, 130 S.W.2d 623; Mitchell v. Health Culture Co., 349 Mo. 475, 162 S.W.2d 233; Donovan v. Kansas City, 352 Mo. 430, 175 S.W.2d 874; Helm v. Inter-State Ins. Exchange, 354 Mo. 935, 192 S.W.2d 417, 167 A.L.R. 238; Tuttle v. Gilbert Manufacturing Co., 144 Mass. 169, 13 N.E. 465; Montgomery Ward & Co. v. Scharrenbeck, 204 S.W.2d 508; Munger v. Equitable Life Society, 2 F.Supp. 914; Standard Accident Ins. Co. v. Pennsylvania Car Co., 63 F.2d 444; Peitzman v. City of Illmo, 141 F.2d 956. (2) Under the allegations of the plaintiff's petition, and the testimony adduced in support thereof, the doctrine of res ipsa loquitur became, and was, applicable. Scharff v. Southern Illinois Construction Co., 115 Mo.App. 157, 92 S.W. 126; DeMun Estate Corp. v. Frankfort General Ins. Co., 196 Mo. 1, 187 S.W. 1124; Kean v. Smith-Reis Piano Co., 206 Mo.App. 170, 227 S.W. 1091; Svast v. White, 5 S.W.2d 668; Keady v. Stix, Baer & Fuller Co., 15 S.W.2d 379; Perry v. Stein, 63 S.W.2d 296; State ex rel. Stein v. Becker, 334 Mo. 749, 67 S.W.2d 755; Harke v. Hasse, 335 Mo. 1104, 75 S.W.2d 1001; Williams v. St. Louis Ry. Co., 337 Mo. 667, 85 S.W.2d 624; Noce v. St. Louis-S.F. Ry. Co., 337 Mo. 689, 85 S.W.2d 637; Tayer v. York Ice Machinery Corp., 342 Mo. 912, 119 S.W.2d 240, 117 A.L.R. 1414; Welch v. Thompson, 210 S.W.2d 79.

David R. Hardy, Sam B. Sebree and Sebree, Shook, Hardy & Hunter for respondent.

(1) A purchaser in possession of real estate cannot recover damages from the vendor for personal injuries due to a defective condition of the premises. The doctrine of caveat emptor applies. Langdon v. Green, 49 Mo. 363; Adams v. Barber, 157 Mo.App. 370, 139 S.W. 489; Smith v. Tucker, 151 Tenn. 347, 270 S.W. 66, 41 A.L.R. 830; Kohnle v. Paxton, 268 Mo. 463, 188 S.W. 155; Home Owners' Loan Corp v. Huffman, 124 F.2d 684; Norris v. Walker, 232 Mo.App. 645, 110 S.W.2d 404; Matthews v. Galbraithe, 238 S.W. 554. (2) Appellant did not make a prima facie case. There was no evidence as to the cause of the ceiling plaster falling while in the exclusive possession and control of appellant. Res ipsa loquitur doctrine is not applicable. Wigmore on Evidence (3 Ed.), sec. 2509, p. 380; Wiedanz v. May Dept. Stores Co., 156 S.W.2d 44; McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557; Estes v. Estes, 127 S.W.2d 78; State ex rel. Ward v. Trimble, 327 Mo. 773, 39 S.W.2d 372. (3) Plaintiff did not allege nor introduce evidence of fraudulent concealment by defendant of a defective condition. 2 Restatement of Law of Torts, secs. 352, 353, p. 961. (4) There was no contract or covenant to repair the ceiling plaster which fell, and even if there had been it would have been waived. 84 A.L.R. 1024; 12 Am. Jur. 354; Employers' Indemnity Corp. v. Garrett, 327 Mo. 874, 38 S.W.2d 1049; Oliver Refining Co. v. Portsmouth Cotton Oil Refining Corp., 64 S.E. 56. (5) There has been a settlement of appellant's claim. (6) Authorities relied upon by appellant are not in point. Dailey v. Vogl, 187 Mo.App. 261, 173 S.W. 707; Kohnle v. Paxton, 268 Mo. 463, 188 S.W. 155; Lahtinen v. Continental Bldg. Co., 339 Mo. 438, 97 S.W.2d 102; Norris v. Walker, 232 Mo.App. 645, 110 S.W.2d 404; Peitzman v. City of Illmo, 141 F.2d 956.

OPINION

Clark, J.

Plaintiff sued, in tort, for damages for personal injuries caused by a fall of plaster upon her from the ceiling of the living room of a house which she and her husband had recently purchased from defendant. At the close of all the evidence the trial court sustained defendant's motion for directed verdict and rendered judgment for defendant. Plaintiff appeals.

Some time in June or July, 1946, respondent's agent began negotiations with appellant and her husband to sell them an old house which was then being remodeled. Appellant and her husband viewed the house a few times from the outside and by looking through the widows while workmen were remodeling the interior. Later, respondent's agent on two or three occasions showed them through the house and they inspected it both inside and out.

On July 13, 1946, a contract to sell the property to appellant and her husband was executed and they paid a portion of the down payment required. About two weeks later they were given a key to the house, but told they could not move in until the deal was completed. On August 12 appellant and her husband completed the down payment and executed a deed of trust and respondent executed and delivered a warranty deed conveying the property to them. At the same time respondent gave the purchasers a written statement guaranteeing that a gas furnace would be installed as soon as available, plumbing would be in operating condition and labor and materials bills in connection with remodeling the house had been or would be paid. The evidence is not entirely clear as to the exact date when appellant and her husband moved in, but it was at least six days before the fall of plaster which injured appellant. After appellant was injured she and her husband employed an attorney to try to effect a settlement. Respondent denied liability, but agreed to and did plaster and paper the ceiling of the living room and clean a rug which had been damaged.

So far there is no conflict in the evidence. There is a dispute as to whether respondent, in remodeling the house, plastered the ceiling of the living room. Respondent's evidence is that no work was done on the ceiling. Appellant furnished some evidence that at least some of the plaster was off the ceiling before the contract of sale was executed and that it had been plastered and papered when appellant and her husband moved in. In view of the nature of this suit we regard that question of fact as unimportant.

Appellant, over respondent's objection, testified that before the contract of sale was executed respondent's agent said, ". . . anything that needs to be done, they will see that they are fixed right." The trial judge indicated that he didn't believe this evidence admissible, stating to appellant's counsel "You are bound by your contract." Appellant's counsel stated that the evidence was offered to show the inducement for the contract, but the suit was in tort and not on the contract. We also regard this evidence as immaterial, for any prior negotiations were merged in the contract of sale and the only warranty which survived related to the installation of plumbing, a gas furnace and the payment of bills. Besides the suit is not based upon fraudulent representations or warranty.

To support her claim that the trial court erred in directing a verdict for respondent, appellant advances two contentions which we copy from her brief: (1) "The breach of defendant's duty, under its contract, to properly and skillfully recondition and rehabilitate the dwelling house in question; and the personal injuries which plaintiff sustained in consequence of such breach, give rise to the action in tort, upon which this cause is founded; . . ." (2) "Since, under the allegations of plaintiff's petition, and the testimony adduced in support thereof, the doctrine of res ipsa loquitur became, and was, applicable; . . ."

In support of her first contention, appellant cites the following: 38 American Jurisprudence, Section 20, page 661; 52 American Jurisprudence, Sections 26 and 27, page 378, et seq; Graff v. Lemp Brewing Company, 130 Mo.App. 618, 109 S.W. 1044; Ellyson v. Missouri Power & Light Company, (Mo. App.) 59 S.W.2d 714; Lowery v. Kansas City, 337 Mo. 47, 85 S.W.2d 104; Hull v. Gillioz, 334 Mo. 1227, 130 S.W.2d 623; Mitchell v. Health Culture Company, 349 Mo. 475, 162 S.W.2d 233; Donovan v. Kansas City, 352 Mo. 430, 175 S.W.2d 874; Helm v. Inter-Insurance Exchange, 354 Mo. 935, 192 S.W.2d 417, 167 A.L.R. 238; Tuttle v. Gilbert Manufacturing Company, 145 Mass. 169, 13 N.E. 465; Montgomery Ward & Co. v. Scharrenbeck, (Tex.) 204 S.W.2d 508, l.c. 510; Munger v. Equitable Life Society, (C.C.A. 8) 2 Fed. Supp. 914; Standard Accident Ins. Co. v. Pennsylvania Car Co., 63 F.2d 444; Peitzman v. City of Illmo, (C.C.A. 8) 141 F.2d 956.

Some of the authorities cited contain abstract statements about as follows: ordinarily a breach of contract is not a tort, but a contract may create a duty the negligent performance, or negligent nonperformance, of which may give rise to an action in tort. None of them holds that a mere contract of sale of real estate will create such a duty. No case cited by appellant involved a suit by a purchaser against a seller of real estate. In Graff v. Lemp Brewing Co., supra, a tenant was permitted to recover in tort for personal injuries allegedly due to a breach by the landlord of a covenant to repair. That case has been criticized by the same court [Dailey v. Vogl, 187 Mo.App. 261, 173 S.W. 707] and, in effect, overruled by this court. [Kohnle v. Paxton, 268 Mo. 463, 188 S.W. 155.] In Mathews v. Galbraithe, (Mo. App.) 238 S.W. 554, the St. Louis Court of Appeals held that a tenant, injured by a...