Dalton v. John Maguire Real Estate Co.
| Decision Date | 04 May 1920 |
| Docket Number | No. 16053.,16053. |
| Citation | 221 S.W. 443 |
| Parties | DALTON v. JOHN MAGUIRE REAL ESTATE CO. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.
"Not to be officially published?'
Action by Maude M. Dalton against the John Maguire Real Estate Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Bartley & Douglass and W. C, Mayfield, all of St. Louis, for appellant.
Brownrigg, Mason & Altman, of St. Louis, for respondent.
REYNOLDS, P.
Respondent, plaintiff below, brought this action against the appellant, defendant, for injuries sustained by her by reason of the giving way of steps leading from the yard into the cellar, on premises occupied by plaintiff and her husband as tenants. In the petition it is charged that plaintiff and her husband occupied the first floor of the building known as 4021 North Ninth street, as tenants from month to month of the defendant. Et is averred "that in connection with said tenancy she also used a portion of the basement or cellar under said building; that other families, tenants of the defendant, occupied premises Nos. 4019, 4019a and 4021a, North Ninth street, also used other portions of said basement or cellar, and that there was provided for the use of the plaintiff and of said other tenants, to be used and used by them in common, a wooden stairway leading to the level of said cellar or basement; and that said wooden stairway was the only means of gaining access to the said cellar or basement." It is averred that while plaintiff was coming from the yard into the cellar, in the performance of her household duties, she stepped upon the stairs and they broke and gave way and plaintiff was thereby thrown violently to the ground, sustaining severe and painful injuries, afterwards particularly described; that the injuries so received by her were directly due to the negligence and carelessness of defendant, in that the stairs were improperly and insecurely held in place, and in permitting the stairs and the supports thereof, leading from the yard to the cellar, to become rotten and to remain out of repair and in a dangerous condition which, it is averred, defendant knew or by the exercise of ordinary care might have known. Describing her injuries, which, among other things are alleged to have produced a miscarriage and resulted in inflammation of the womb and injuries to her abdomen, back and genital organs, the injuries permanent, as it is averred, plaintiff demands judgment in the sum of $7500 and costs.
The answer, after a general denial, pleads contributory negligence on the part of plaintiff. To this there was the usual reply.
A trial before the court and jury resulted in a verdict in favor of plaintiff for the sum of $7500, judgment following, from which defendant has duly appealed.
The material points in controversy on this appeal are: Whether defendant, as owner of the premises, maintained and was in control of the stairway at the time of the accident; whether that was sufficiently averred in the petition; whether defendant had knowledge of, or should have known of, the defective condition of the stairway; the extent and permanency of plaintiff's injuries, and amount of the verdict.
Learned counsel for appellant made eight assignments of error, but have argued only three, and we will confine ourselves to them.
The first point argued is that the trial court erred in not sustaining appellant's demurrer and peremptory instruction offered at the close of respondent's case.
In support of this, it is argued that the petition does not state facts sufficient to constitute a cause of action, will not support the judgment, nor entitle respondent to recover. It is also argued that the landlord was under no obligation to make repairs on these premises during the term of the tenancy, unless he had contracted to do so, and was not liable for consequences resulting from failure to make such repairs; and that it was incumbent on the respondent to plead, either a retention of possession and control of the stairs in question, or that they were used as a common mode of ingress and egress to and from the basement, with the knowledge and consent of appellant.
We have quoted that part of the petition which contains the allegation as to the ownership and use of the stairway. It is true that the petition does not, in so many words, aver that the landlord, defendant here, had retained possession and control of the stairs. It is, however, averred with sufficient definiteness, that they were used as a common mode of ingress and egress to and from the basement, "and that there was provided for the use of the plaintiff and of said other tenants, to be used and used by them in common, a wooden stairway," etc.
In considering this case we are to bear in mind that if the petition even defectively states a cause of action, and it not attacked below, it is aided by the verdict. Here we have a verdict in favor of the plaintiff. This petition avers that plaintiff used a portion of the basement or cellar into which these stairs led, in common with others, tenants of adjoining apartments in the building, and that she, in common with these other families, used portions of the basement or cellar, "and that there was provided for the use of the plaintiff and of said tenants, and used by them in common," the stairway leading to the cellar or basement, and that it was the only means of gaining access to the cellar. Learned counsel for appellant claim that by the use of the word it was not distinctly alleged that the stairway was maintained by the landlord, and hence the petition is bad. We cannot agree to this contention. When the petition avers, as here, that the stairway was provided for the common use of all the tenants, it must mean, provided by the landlord, when we have the fact of its use in common by all the tenants, the natural conclusion is that the landlord, in the absence of a stipulation to the contrary in the contract, was bound to and did maintain it for that very purpose. The evidence sustains the allegation that this stairway into the cellar is in common usage by all the tenants of the apartment house and has been so used years. It would be a very extreme inference to hold that each of these tenants, of them apparently tenants from month to month, had gone to work and erected this stairway for their common use and then...
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