Coplen v. Zimmerman

• Decision Date: 13 September 1954
• Docket Number: No. 2,No. 43665,43665,2
• Citation: 271 S.W.2d 513
• Parties: James Ernest COPLEN, Respondent, v. William G. ZIMMERMAN and John P. Zimmerman, Respondents, and Sadie Halliday, Appellant
• Court: Missouri Supreme Court

Page 513

271 S.W.2d 513

James Ernest COPLEN, Respondent, v. William G. ZIMMERMAN and John P. Zimmerman, Respondents, and Sadie Halliday, Appellant.

No. 43665.

Supreme Court of Missouri, Division No. 2.

Sept. 13, 1954.

Motion for Rehearing or Transfer to Court en Banc Denied

Oct. 11, 1954.

Frank L. Cohn, Harry A. Hall, Kansas City, for appellant.

Wm. G. Zimmerman, John P. Zimmerman, Kansas City, for respondents.

Harold Waxman, Kansas City, for defendant, Sadie Halliday.

BARRETT, Commissioner.

About midnight on July 20, 1950, the plaintiff, James E. Coplen, and his wife called on a sick friend in her rooms or apartment at 1428 Holmes Street. The structure known as 1428 Holmes Street was formerly a residence, but the first floor had been converted into a grocery store and the second and third floors into apartments. In making the first floor suitable for a grocery store a structure was built onto the first floor so that the building was flush with the sidewalk. The walls of the first floor addition extended above its roof about two feet and the roof and wall constituted the second floor porch. William G. and John Zimmerman inherited the property from their father in 1929, and in 1950 Mr. Rosenberger operated a grocery store in the first floor and Mrs. Halliday occupied the second floor, either as a tenant or under a contract to purchase from the Zimmermans and rented out rooms or apartments. As the Coplens were leaving their sick friend Mrs. Coplen stopped in the hallway for a few minutes and Mr. Coplen walked out onto the second floor porch. He lighted a cigarette, 'walked on over to the edge of the porch, laid both hands on the rail, and my left knee, and looked down on the sidewalk' and a section of the wall gave way and he fell to the ground and was injured.

To recover damages for his resulting personal injuries Mr. Coplen instituted this action against the Zimmermans and Mrs. Halliday upon the allegation that 'the defendants, as owners, and/or agents, had control, management, supervision and possession of the premises' and were responsible for its care, upkeep and repair. He alleged that he was an invitee upon the premises, 'using due care for his own safety,' and that the defendants were negligent in that knowing that the concrete railing was weakened and insecure they permitted it to remain in that condition and failed to warn or guard against its danger. Upon the trial of his case a jury returned a verdict in favor of the plaintiff and against all three defendants in the sum of $8,500. The Zimmermans and Mrs. Halliday filed seperate motions for a new trial and the court overruled Mrs. Halliday's motion but sustained the Zimmermans' motion upon the ground that the porch and railing were under the exclusive control and possession of Mrs. Halliday and that, therefore, there was no duty upon the Zimmermans to maintain or repair the railing or to warn persons not to lean against it.

The plaintiff, Coplen, appealed from the order sustaining the Zimmermans' motion for a new trial and Mrs. Halliday appealed from the order overruling her motion. After the appeals had been perfected, the transcript and briefs filed, the plaintiff, Coplen, filed a stipulation in this court dismissing his appeal as to the Zimmermans. He also filed a motion to dismiss Mrs. Halliday's appeal for the reason that she had not perfected her appeal by filing a transcript. That motion was overruled by this court on the 8th day of February 1954 and the appeal is to be determined upon the transcript filed and Mrs. Halliday's brief, since the plaintiff, Coplen, has not seen fit to brief or argue his case upon the merits against Mrs. Halliday. And she contends that the plaintiff's petition fails to state a cause of action, that the court erred in not sustaining her motions for a directed verdict and that the court prejudicially erred in giving and refusing instructions.

In contending that the petition fails to state a cause of action the appellant seizes upon the frequently criticized phrase 'and/or', State ex rel. Adler v. Douglas, 339 Mo. 187, 95 S.W.2d 1179, and urges that the symbol leaves the position of the three defendants indefinite, confusing and contradictory. It is urged that their status, duties and liabilities and owners and agents would not be the same and therefore the petition fails to advise the defendants as to the theory upon which the plaintiff asserts liability. But the commonly accepted meaning of the phrase 'and/or' is 'Either and or or.' Webster's New International Dictionary. And despite any ambiguity arising from the use of the phrase, under the allegations of the petition, and certainly under the proof, Mrs. Halliday's duty and liability arise from the fact that she was in possession of the second floor with control of the porch and its railing under either a contract of purchase from the Zimmermans or as their tenant. 1 Tiffany, Landlord & Tenant, Sec. 120; 32 Am.Jur., Sec. 817, p. 695; 52 C.J.S., Landlord and Tenant, Secs. 435-436. In either event, as against Mrs. Halliday and the objection now urged, the petition sufficiently states a claim upon which relief could be granted. Sections 509.040, 509.050, RSMo 1949, V.A.M.S.; Lambert v. Jones, 339 Mo. 677, 98 S.W.2d 752; Duff v. Eichler, 336 Mo. 1164, 82 S.W.2d 881; Burton v. Rothschild, 351 Mo. 562, 173 S.W.2d 681; 52 C.J.S., Landlord and Tenant, Sec. 443(b), page 123.

In contending that the court erred in overruling Mrs. Halliday's motions for a directed verdict it is not seriously contended that negligence with respect to the railing was not a fair and reasonable inference from the plaintiff's evidence, but it is urged that he was guilty of contributory negligence as a matter of law. Two witnesses, former tenants, in describing the stuccoed, concrete and rock railing, said, 'It just had all separated,' the stucco was loose and off, 'the float rocks were laying on top of them, and you could shake them. It just sat there' and there were large cracks in the wall. Several witnesses, including one of the Zimmermans, had seen people sitting on the railing. One witness said that Mrs. Halliday had asked her, and others, to not sit on the railing because it was dangerous. Some consideration had been given to repairing the wall. The plaintiff's wife had visited her friend at 1428 Holmes many times, often in the daytime but Mr. Coplen had been there on but two or three previous occasions, always at night and so he had not seen the railing in the light of day. It is urged that he admitted exerting pressure upon the railing, that it was fairly light and that he had no difficulty seeing the railing when he looked over, hence it is contended that he was guilty of contributory negligence as a matter of law. In the trial of the case the defendants sought to establish the inference that Mr. Coplen fell over the wall and that the railing tumbled down upon him after the fall. But he had no warning from any source that there was any danger in the railing. Mr. Coplen is a large man, six feet two inches tall and heavy. He said, 'I walked up to the rail and laid both hands on it, my left knee, and leaned over' and 'the rail gave way.' 'Q. Did you do anything else? Did you brush it? A. No, only what pressure I put against it with my knee leaning on it. Q. Was there anything about this that you saw that would indicate it might give way with you? A. No.' He had not previously examined the railing and 'It was dark, there was no porch light on the porch.' In these circumstances Mrs. Halliday's negligence and consequent liability and certainly Mr. Coplen's contributory negligence were questions for the jury to resolve and could not properly be declared as a matter of law. Roman v. King, 289 Mo. 641, 233 S.W. 161, 25 A.L.R. 1263; Brewer v. Silverstein, Mo., 64 S.W.2d 289; Kennedy v. Hartwig-Dischinger Realty Co., Mo.App., 201 S.W.2d 475; 65 C.J.S., Negligence, Secs. 256-257, page 1166.

Instruction one is a conventional instruction submitting the status and duty of the three defendants and hypothesizing their possession and control of the common passageway, their knowledge of the insecure, defective railing and that 'the plaintiff had gone to the building to visit friends who resided there, and while on the porch and exercising ordinary care for his own safety, * * *.' It is urged that this instruction was prejudicially erroneous in two particulars, first, because it directs a verdict for the plaintiff 'without requiring a finding that plaintiff had no knowledge of the dangerous condition in time to have avoided injury to himself' and, second, because 'it omits the issue of the non-liability of defendants to plaintiff for any defect existing in the railing caused by third parties, not agents of defendants, occurring before defendants had reasonable time to repair same.' In connection with both of these claims it should be noted that there were instructions, offered by the defendants, which exonerated Mrs. Halliday if the jury found that there was no duty on her part to make repairs to the exterior of the premises, including the railing, that if both plaintiff and defendants were guilty of negligence contributing to Mr. Coplen's injury, the jury's verdict should be for the defendants. There was an instruction upon Mrs. Halliday's lack of knowledge of the condition in time to have remedied the defect and there was an instruction that if the jury found that plaintiff put his knee and hands on the railing and exerted pressure upon it 'and was thereby not using ordinary care for his own safety'...