Dierkes v. Wolf-Swehla Dry Goods Company, a Corp.
| Decision Date | 02 May 1922 |
| Citation | 243 S.W. 269,210 Mo.App. 142 |
| Parties | ANNIE DIERKES, Appellant, v. WOLF-SWEHLA DRY GOODS COMPANY, a Corporation, Respondent |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Moses Hartmann, Judge.
AFFIRMED AND REMANDED.
Judgment affirmed and cause remanded.
D. J O'Keefe and John J. Morris for appellant.
(1) Under the pleading and evidence submitted the landlord and tenant were both liable. (a) The landlord is liable by reason of his failure to maintain the walk in this common passageway in a reasonably safe condition for use by plaintiff who was an invitee of the tenant. 18 Am. & Eng. Ency. of Law, pp 220, 245; Bushnell on Personal Injuries (2 Ed.), sec. 66-70; Herdt v. Koenig, 137 Mo.App. 589; Wilson v Jones, 182 S.W. 756; Karp v. Barton, 164 Mo.App. 389; Stern v. Miller, 111 N.Y.S. 659; McGinley v. Alliance Trust Co., 168 Mo. 257, 266; Bender v. Weber, 250 Mo. 551; Miller v. Geeser, 193 Mo.App. 1; Udden v. O'Reilly, 180 Mo. 650. (b) The tenant is liable by reason of its duty to exercise ordinary care and caution to ascertain and keep the walk in this passageway which it used as an approach to its store in a reasonably safe condition for such use as it either expressly or impliedly invited plaintiff to make of this walk; it was negligence on the part of the tenant without warning to invite or induce plaintiff to enter upon this dangerous approach. Welch v. McAllister, 15 Mo.App. 492; Glaser v. Rothschild, 221 Mo. 180; Aiken v. Sidney Steel Scraper Co., 197 Mo.App. 673; Hollis v. Merchants' Ass'n., 205 Mo. 508; Bushnell on Personal Injuries (2nd Ed.), Sec. 68-70; Cooley on Torts (2nd Ed.), p. 718; Shaw v. Goldman, 116 Mo.App. 332; Bender v. Weber, 250 Mo. 551; McCullen v. Fishell Amusement Co., 198 Mo.App. 130, 139. (2) Instruction No. 1, given for plaintiff, was not erroneous. Under the pleadings and evidence in this case, this instruction was proper. Glaser v. Rothschild, 221 Mo. 180; McCullen v. Fishell Amusement Co., 198 Mo.App. 130. (3) All of the instructions given at the request of the parties are the instructions of the court and are considered by the the jury as a whole. Instruction No. 1 for plaintiff and No. 4 for defendant fully presented the case made by the pleading and the evidence in this case. Gibler v. Terminal R. R. Ass'n, 203 Mo. 208; Turner v. Snyder, 139 Mo.App. 656; Luecke v. Railroad, 146 Mo.App. 500; Forge Co. v. Engine Co., 135 Mo.App. 86.
Geo. W. Lubke and Geo. W. Lubke, Jr., for respondent.
(1) The duty of keeping in safe condition for the use of his tenants and persons invited upon the premises by them of the parts of premises used in common by all the tenants, where the property is let in parts to several tenants is on the owner of the premises, and he alone is liable for failure to fulfill this duty. Andrus v. Bradley-Alderson Co., 117 Mo.App. 322; McGinley v. Alliance Trust Co., 168 Mo. 257; Lang v. Hill, 157 Mo.App. 685; Marchek v. Klute, 133 Mo.App. 280. (2) The instructions numbered one, given for the plaintiff, and numbered three, given for the defendant, were clearly in conflict with each other, which was reversible error. State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645; Rooker v. Deering, S.W. Railway Co., 204 S.W. 556; Pullam v. Vaughn, 218 S.W. 889.
Appellant, who was plaintiff below, appeals from an order granting defendant a new trial, after verdict and judgment for plaintiff in a suit for damages based upon the alleged negligence of the defendant.
The action as originally brought was against one George Ande as owner and the defendant Wolf-Swehla Dry Goods Company as the lessee of certain real estate known as 2865, 2867 and 2869 South Jefferson avenue in the city of St. Louis. At the trial the plaintiff took an involuntary nonsuit as to the said George Ande, and the sole question presented relates to the liability of the lessee Wolf-Swehla Dry Goods Company. The property referred to was improved by buildings, the first floor of which was used for store purposes, and the upper floors for tenements or flats. Defendant Wolf-Swehla Dry Goods Company occupied the first floor of the part of the building known as 2865 South Jefferson avenue, where it conducted a retail dry goods business. The other parts of the building were occupied by other tenants for business and residence purposes.
Lessee Wolf-Swehla Dry Goods Company will be referred to as the defendant. Between the building occupied by the defendant and the adjacent building No. 2867 there was a passageway 4 1/2 feet wide extending from the sidewalk in front of the building on Jefferson avenue to the rear of said buildings. This passageway was on the north side of defendant's store building and extended to the west into a back yard opening on to an alley. This passageway was used in common by all of the tenants of the building for the purpose of egress and ingress. There was a door leading from the defendant's store to this passageway, which was about forty feet back from the front of the building and near to the west or rear end of the defendant's store. It was uncontradicted that this passageway was used in common by all the tenants of the building of which the defendant occupied a part, and that the passageway was in the control of the owner of the whole premises; that underneath this passageway, which was covered with granitoid paving, there was a cellar, which however, was not under the control or rented to the defendant.
The plaintiff charged that the defendant constructed or maintained a concrete walk through this passageway in an unsafe, defective and dangerous condition over the excavation or cellar adjacent to and alongside of the building occupied by the defendant, which concrete walk was used by the defendant and its customers in common with other tenants; that the defendant knew or by the exercise of ordinary care, in the construction and maintenance of said granitoid walk over said excavation, would have known that the same was dangerous and unsafe for use by persons passing on or over the same, and that it was the duty of the defendant to carefully maintain said walk and premises in a reasonably safe condition and good state of repair for the use by plaintiff going on and upon said premises. It is then charged that the defendant carelessly and negligently constructed and maintained said walk in a dangerous and defective condition, thereby causing injury to plaintiff.
On March 2, 1918, defendant had advertised a closing out sale at its store. The plaintiff having observed the advertisement of said sale, went to the defendant's place of business at about 8:30 o'clock on the morning of that day. Because of the crowd in the store she was unable to gain admittance through the front door, the same being closed and locked. She waited about the front of the store for some time and finally noticed that persons were going in and out through the passageway referred to and which adjoined the building on the north. With others she then proceeded through this passageway for the purpose of entering the store at the door which led from the passageway into defendant's store. There was considerable of a crowd in the passageway and at first she was unable to obtain admittance. While standing in the passageway persons in front of her were admitted to the store and others who had finished with their purchases came out. While standing in the passageway and awaiting her turn to be admitted the granitoid or concrete suddenly gave way and she with others was precipitated into the cellar beneath, causing her to be injured.
The walk referred to and which collapsed, had been constructed some twenty years before and was built upon wooden supports, which the evidence indicated had become old, decayed and rotten, and which were insufficient to support the walk under the conditions referred to. The space underneath the walk together with the cellar underneath the building occupied by the defendant, had frequently during a number of years been partially filled with water due to the sewers of the city overflowing, which caused the rotten condition of the wooden supports. The space beneath the walk was not a part of the premises leased by the defendant but, as stated, was under the control of the landlord, who owned the entire premises.
Instruction No. 1 for the plaintiff is as follows:
"The court instructs the jury, that if you believe and find from the evidence in this case, that on the 2d day of March, 1918, the defendant, Wolf-Swehla Dry Goods Company, was the occupant of the building at Number 2865 South Jefferson avenue, in which it conducted a dry goods store as mentioned in the evidence and if you further believe and find from the evidence in this case, that there was on the aforesaid day an excavation or cellar along the side of and beneath the building so occupied by said defendant Wolf-Swehla Dry Goods Company, over a portion of which excavation or cellar there was at said time a concrete walk used by said defendant, Wolf-Swehla Dry Goods Company, as an approach to its said store; and if you further believe and find from the evidence that said defendant, Wolf-Swehla Dry Goods Company, through its agents in authority, in vited or induced plaintiff, an intended customer of said defendant, to enter its store over said concrete walk, over said excavation, then you are instructed that the obligation or duty...
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