Cool v. Rohrbach

• Decision Date: 03 December 1929
• Docket Number: No. 20759.,20759.
• Citation: 21 S.W.2d 919
• Parties: COOL v. ROHRBACH et al.
• Court: Missouri Court of Appeals

21 S.W.2d 919

COOL v. ROHRBACH et al.

No. 20759.

St. Louis Court of Appeals. Missouri.

December 3, 1929.

As Modified, on Denial of Rehearing, December 17, 1929.

Appeal from St. Louis Circuit Court; H. A. Hamilton, Judge.

"Not to be officially published."

Action by Leon Cool against Henry Rohrbach, the Haase Realty Company, and the Kroger Grocery & Baking Company. From an order granting defendant Kroger Grocery & Baking Company's motion for new trial after judgment for plaintiff, plaintiff appeals. Order reversed, and cause remanded, with directions.

John E. Turner and Earl M. Pirkey, both of St. Louis, for appellant.

Jones, Hocker, Sullivan & Angert, of St. Louis, for respondent.

SUTTON, C.

This is an action for damages for personal injuries. The cause was tried to a jury. During the trial, plaintiff took a voluntary nonsuit as to defendant Haase Realty Company, and the cause proceeded against the other two defendants, Henry Rohrbach and Kroger Grocery & Baking Company. The jury returned a verdict in favor of the plaintiff against the defendants Henry Rohrbach and Kroger Grocery & Baking Company for $2,500. Defendant Kroger Grocery & Baking Company filed a motion for a new trial. The court sustained this motion, and granted said defendant a new trial. From the order of the court granting said defendant a new trial, plaintiff appeals.

The ground on which the court granted said defendant a new trial, as specified in its order, was "that the court erred in refusing instructions offered by said defendant, directing a verdict in its favor." It is not contended here that the action of the court in granting a new trial may be justified on any other ground.

On January 26, 1922, appellant was injured by falling through a basement door or opening in a public sidewalk adjacent to a building at the southwest corner of Bayard and Page avenues, in the city of St. Louis. The sidewalk was on the east side of the building, on Bayard avenue. Defendant Henry Rohrbach was the owner of the building. The respondent, Kroger Grocery & Baking Company, was in possession of a storeroom on the first floor, using it as a grocery store under a lease from Rohrbach.

The lease, which was made on October 20, 1920, provides as follows: "Henry Rohrbach does hereby lease to the Kroger Grocery & Baking Company the premises situate in the city of St. Louis, state of Missouri, described as follows: Storeroom known as 4844 Page avenue, * * * with appurtenances thereto, for a term of three years. * * * Said lessee agrees to make all interior repairs, including lights in doors and windows. * * * Lessor agrees to keep in good repair the roof and outside of the building, the supply pipes for gas and water leading to the premises, and the drainage pipes. * * * Lessor agrees to furnish heat during the winter months of the term of this lease."

The opening in the sidewalk through which appellant fell was covered with two iron doors. The ruinous condition of these doors, especially with respect to their hinges and fastenings, was amply shown.

Respondent urges that its instruction in the nature of a demurrer to the evidence should have been given, on the ground that the evidence does not show that respondent had any control over the basement or the opening and cover thereon leading into such basement, but, on the contrary, shows that respondent's control of the premises was limited to the storeroom. The building in question fronts about 30 feet on Page avenue, and extends south about 65 to 70 feet. There is a basement under the entire building, divided by partitions. There are three storerooms on the ground floor. Two of these storerooms, which are south of the room occupied by respondent, front on Bayard avenue. The room occupied by respondent is the north room of the building. It has a corner front, and is referred to by the witnesses as the corner store. The opening or areaway through which appellant fell is 6 to 10 feet south of the northeast corner of the building. There is a stairway leading down through the opening into the basement. This part of the basement, which is under the storeroom occupied by respondent, is separated from the rest of the basement by a partition wall on the south. There are apartments upstairs over the storerooms. Some of these were occupied by tenants during the time that respondent occupied the storeroom under the lease. The storerooms fronting on Bayard avenue were occupied as stores or shops. None of the tenants of the building used the opening through which appellant fell, except the respondent. The other tenants used other openings in the sidewalk, or in the floor inside the building, as entrances to the basement. There was evidence that one tenant, who occupied the apartment over the storeroom occupied by respondent, had a locker in the basement under said storeroom; but this tenant entered the basement by a stairway leading from inside the building, and did not use the opening in the sidewalk.

On or about the date of the lease, respondent entered into possession of the storeroom, and occupied it as such during the term of the lease. There was ample evidence to show that the respondent, during its occupancy of the storeroom, continuously used the basement under the storeroom for the storage of boxes; that the boxes were taken from the storeroom to the basement and stored there by the respondent's manager and clerks in charge of the store, and that at frequent intervals the boxes were removed from the basement and hauled away in respondent's grocery wagon; that in storing the boxes in the basement, and in removing them from the basement, the respondent used the opening in the sidewalk through which the appellant fell when he was injured; that some of these boxes were in the opening at the foot of the stairs at the time appellant fell.

Defendant Rohrbach and his agents were frequently in and about the building during respondent's tenancy, and must have observed the usage respondent was making of the basement and the opening in the sidewalk leading thereto. Defendant Rohrbach maintained his heating plant in the basement to heat the building, and also kept his coal there in a bunker. The coal, however, was not taken into the basement through the opening used by the respondent. But his fireman, who had charge of...