Degnan v. Doty

• Decision Date: 08 December 1922
• Docket Number: No. 23094.,23094.
• Citation: 246 S.W. 922
• Parties: DEGNAN et al. v. DOTY et al.
• Court: Missouri Supreme Court

246 S.W. 922

DEGNAN et al. v. DOTY et al.

No. 23094.

Supreme Court of Missouri, Division No. 2.

December 8, 1922.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

Action by Francis P. Degnan and others against Samuel F. Doty and others, to recover damages for the death of plaintiffs' child. From a judgment for defendants after the court refused to set aside the involuntary nonsuit, plaintiffs appeal. Affirmed.

Anderson, Gilbert & Wolfort, of St. Louis, for appellants.

A. B. Lansing and Holland, Rutledge & Lashly, all of St. Louis, for respondents.

Statement.

REEVES, C.

This is an action for damages instituted by parents for the violent death of their child. At the close of plaintiffs' case a demurrer as to codefendant Samuel F. Doty was sustained without objection. As to defendants Oreon E. and R. G. Scott, a demurrer was sustained over the objection of plaintiffs, and they were compelled to take an involuntary nonsuit, and this they did with leave. The court on plaintiffs' motion refused to set aside their involuntary nonsuit, and they appeal.

The petition charged:

That the "defendants owned, controlled, and managed the premises located in the city of St. Louis, state of Missouri, at 5317 Goodfellow place;" that they "maintained said premises in an unsafe, dangerous, and defective condition, and negligently and carelessly caused and permitted to remain on said premises, in the rear yard of the same, and in close proximity of the rear steps of the house situated on the said premises, a large tree, which said tree was old, rotten, and decayed;" that, by reason of such condition, the tree was dangerous and liable to fall, and that defendants knew such fact; "that on the 7th day of June, 1919, plaintiffs' infant daughter, Catherine Margaret Degnan, was sitting on the rear steps of the house, located on the premises aforesaid, and while lawfully upon said premises, and while so situated, the said tree fell because of the aforesaid rotten and decayed condition of said tree, and struck plaintiffs' daughter and inflicted injuries upon said child, from which said injuries she died; that the injuries so inflicted were due to the negligence and carelessness of defendants in causing and permitting said old, decayed, and rotten tree to remain and be upon said premises."

Plaintiffs prayed for an assessment of damages in the sum of $10,000. By an amended answer defendants denied the allegations of the petition. They averred that the legal title to said premises was in defendants, Oreon E. and R. G. Scott, but that about two years before the date mentioned in the plaintiffs' petition said defendants rented the property mentioned to a party named Lamb, the mother of Agnes Degnan, one of the plaintiffs; that said Lamb occupied said premises from said date until and after the 7th day of June, 1919, as a tenant from month to month of the said defendants, Oreon E. and R. G. Scott; that during all of said time said defendants were not in possession or control of said property; that during said tenancy plaintiffs occupied a portion of said premises "under some arrangement with the said Lamb, and that whatever injuries, if any, were sustained by Catherine Margaret Degnan on the occasion mentioned in plaintiffs' petition were caused by the negligence of plaintiffs directly contributing thereto in this, to wit: That plaintiffs, during said period, became familiar with the said premises and all parts thereof, including the tree referred to in plaintiffs' petition, and that all the details in reference to the said tree and its condition were open and obvious and were known to the plaintiffs on the 7th day of June, 1919, and prior thereto, * * * and plaintiffs were negligent in allowing the said Catherine Margaret Degnan, on the occasion in question, to be and remain in the vicinity of said tree."

The reply was a general denial of the allegations of the amended answer.

The testimony showed that plaintiffs' infant child was three years and four months old at the time of her injury and death; that about 5 o'clock in the afternoon of June 0, 1919, she was sitting on the back porch with her grandfather, William B. Lamb; that the day was calm, and that while so sitting the tree mentioned in plaintiffs' petition fell, striking said infant in such way as to cause a fracture of her skull and other injuries, and that such injuries resulted in her death a few hours later.

In March, 1917, coplaintiff Agnes Degnan acting for and in behalf of her mother, Mrs. Catherine Lamb, rented said premises from defendants at a monthly rental of $25; that said coplaintiff's father and mother became tenants of said premises from month to month, and that plaintiffs moved therein and occupied same under an arrangement with Mrs. Lamb and her husband, and that they paid Mrs. Lamb for their use of said premises. At the time Mrs. Lamb rented the property, the tree was dead, and a large limb extended over the back porch. When the rental contract was entered into defendants mentioned this tree, and another standing on said premises, and promised to have same removed. It appeared that the tree in question was in danger of falling, and that plaintiffs observed such condition during the entire time of the tenancy. Mrs. Degnan said:

"That about six months before the accident we noticed this limb of the tree was in a dangerous condition, not the entire tree. * * * The limb of the tree appeared to be dangerous the way it swung backwards and forward. * * * One branch fell off the tree into the next yard where Mr. Brogan lives."

Appellants repeatedly complained to defendants and their collector about the removal of the tree, and these complaints continued until the accident. In fact, many witnesses had observed and discussed the dangerous condition of the tree, and seine of them had urged upon defendants' collector that such tree should be removed.

As stated at the close of plaintiffs' evidence, they were coerced into an involuntary nonsuit, which they took with leave, and from the refusal of the trial court to set same aside they appealed. They charge here that "the court erred in giving the demurrer to the evidence."

Opinion.

1. Appellants' petition alleged that "the defendants owned, controlled, and managed" said premises, and that they "maintained said premises in an unsafe, dangerous, and defective condition, and negligently and carelessly caused and permitted to remain on said premises * * * a large tree, * * * old, rotten, and decayed." and that plaintiffs' infant daughter, "while lawfully upon said premises," suffered injuries from the falling of said tree, from which injuries she died.

The petition does not allege in what way said infant was lawfully upon private premises owned, controlled, and managed by defendants. There is no allegation that she was there by the express or implied invitation of respondents, or that she was attracted there under the "turntable" or attractive nuisance doctrine. Under such circumstances, respondents owed no duty to her to keep such premises in a reasonably safe condition.

"One applicable general rule of law is that there must be a duty raised by the law and breached...