Conley v. Dee
| Citation | 246 S.W.2d 385 |
| Decision Date | 19 February 1952 |
| Docket Number | No. 28240,28240 |
| Parties | CONLEY v. DEE et al. |
| Court | Court of Appeal of Missouri (US) |
James R. Anderson, St. Louis, for appellants.
I. H. Gamble, St. Louis, for respondent.
WOLFE, Commissioner.
This is an action in unlawful detainer for possession of a flat in St. Louis County. The suit originated in a magistrate court there but went on change of venue to a magistrate court in Jefferson County, where there was a finding for the plaintiff, and the cause was appealed to the circuit court. Upon trial de novo by the circuit court without a jury the plaintiff again prevailed and the defendants prosecute this appeal.
Alice V. Conley, who was the only witness called in this case, testified that she purchased a two-family flat in Richmond Heights in St. Louis County from a man named Buvick with the intention of residing on the first floor. At the time of the purchase Buvick lived on the second floor of the flat. His brother-in-law occupied the lower floor and Mrs. Dee, his mother, lived with him. Mrs. Conley did not know of the relationship between the tenant and the owner of the building at the time of the purchase. She obtained the required permission under the federal housing act to occupy the property and served a notice to terminate the tenancy on July 26. On June 1, Mrs. Dee gave her a check and said that her son wanted a receipt. The receipt was prepared and read that the sum received was rent due from July 1 to August 1.
Mrs. Conley testified that after signing the receipt she decided that she had made a mistake and offered to return the check to Mr. Dee but he declined it. She then served other notices of termination of tenancy, one of which was directed to Timothy Dee and the other to Mrs. John Dee. When she went to the house to serve the notices, Mrs. Dee answered the door and called Timothy Dee to whom Mrs. Conley handed both notices. Mrs. Dee told Mrs. Conley that she lived with her son, who supported her, and that he was building a house to which they were going to move. When they did not move, Mrs. Conley called again at which time Mrs. Dee said to her: 'My son said to go ahead and sue, do whatever you want to, we are not moving.' Mrs. Conley was asked on cross-examination if Mrs. Dee was one of the tenants, to which she replied: She further stated: The rental paid by Timothy Dee was $35 per month and five months rent was due at the time of the trial.
At the conclusion of the plaintiff's case the defendants filed a motion to dismiss the action on the ground that no notice to terminate the tenancy had been served upon Mrs. Dee. This motion was overruled and the court entered a judgment directing restitution to the plaintiff of the property unlawfully detained and awarded plaintiff a judgment against defendants for '$175 rent and $100 as damages'.
The appellants contend that the action should have been dismissed upon their motion at the close of the plaintiff's case because the notice to terminate the tenancy was not served upon Mrs. Dee personally. It does not, however, appear from the record that the relation of landlord and tenant ever existed between the plaintiff and Mrs. Dee. Timothy Dee paid the rent and his mother lived with him. Since Mrs. Dee was not a tenant there was no tenancy to terminate by notice or otherwise. It is evident, however, that this action was brought under that portion of Mo.R.S.1919, Sec. 534.030, V.A.M.S. which relates to persons holding over lands or property after the termination of the time for which they were rented to them, and in order to maintain the action under this portion of the section, the relationship of landlord and tenant must have existed. Leone v. Bilyeu, 361 Mo. 974, 238 S.W.2d 317; McIlvain v. Kavorinos, Mo.App., 212 S.W.2d 85; Bruner v. Stevenson, Mo.App., 73 S.W.2d 413; Barber v. Todd, Mo.App., 128 S.W.2d 290. It is therefore equally apparent that while it was not necessary to serve any notice upon Mrs. Dee the action itself could not be maintained against her because she was not a tenant. It follows that at the close of plaintiff's case the court should have dismissed as to defendant Mrs. John Dee.
It is asserted that the court erred in assessing $100 damages in addition to the rent of $175. Mo.R.S.1949, Sec. 534.310, V.A.M.S., provides that damages allowable...
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...here, such as appeared in State v. Hunt, Mo.App., 335 S.W.2d 506. For a clear and succinct discussion of the subject see Conley v. Dee, Mo.App., 246 S.W.2d 385, 387. We find no abuse of discretion During his opening argument counsel for plaintiff discussed the question of contributory negli......
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