Finer v. Nichols

• Decision Date: 03 June 1913
• Citation: 157 S.W. 1023,175 Mo.App. 525
• Parties: ROSE FINER, Respondent, v. CECELIA NICHOLS, Appellant
• Court: Missouri Court of Appeals

157 S.W. 1023

175 Mo.App. 525

ROSE FINER, Respondent, v. CECELIA NICHOLS, Appellant

Court of Appeals of Missouri, St. Louis

June 3, 1913

Appeal from St. Louis City Circuit Court.--Hon. J. Hugo Grimm Judge.

Judgment affirmed.

Vital W. Garesche and Alexander R. Russell for appellant.

(1) The pleading and evidence failed to show a right of plaintiff to a verdict. Finer v. Nichols, 158 Mo.App. 539; Coggs v. Bernard, 2 Ld. Raymond, 909; Roberts v Cottey, 100 Mo.App. 500; Little v. McAdaras, 38 Mo.App. 187; Glenn v. Hill, 210 Mo. 291; Potter v. Hourigan, 124 N.W. 884; Lipschitz v Rapaport, 133 N. T. Supp. 385; Rhodes v. Seidel, 102 N.W. 1025; Wynne v. Haight, 50 N.Y.S. 187; Galvin v. Beals, 187 Mass. 250; Mann v. Fuller, 66 P. 627; Gregor v. Cady, 82 Me. 131; Gill v. Middleton, 105 Mass. 477; Callahan v. Loughran, 102 Cal. 476; Carlon v. Bank, 118 N.W. 334; Blumental v. Prescott, 75 N.Y.S. 710; 2 Underhill Landlord & Tenant, 864; 24 Cyc. 1116; 18 Am. & Eng. Ency. of Law (2 Ed.), 239; 2 Kent Com. 570. (2) It is the duty of plaintiff to show that the injuries for which she seeks compensation resulted directly from the injury sustained. Young v. Railroad, 113 Mo.App. 640; Werner v. Railroad, 178 Mo. 125; Smart v. Kansas City, 91 Mo.App. 586; Wilbur v. Railroad, 110 Mo.App. 689. (3) Plaintiff must specially plead such injuries as are merely consequential and not the natural and necessary results of her alleged injuries. Thompson v. Railroad, 111 Mo.App. 476. (4) Evidence of repairs made subsequent to the alleged injury to plaintiff is inadmissible. Schloemer v. Transit Co., 204 Mo. 117; Brennan v. St. Louis, 92 Mo. 488; Alcorn v. Railroad, 108 Mo. 90; Railroad v. Hawthorne, 144 U.S. 202; Bailey v. Kansas City, 189 Mo. 510. (5) A witness cannot be impeached by showing that he attempted to suborn witnesses, unless a foundation is laid therefor in his cross-examination, and the error in receiving such testimony is not cured by instructing the jury to disregard it. Hoagland v. Modern Woodmen, 157 Mo.App. 15; Bates v. Holliday, 31 Mo.App. 162; Gutzweiler's Adm'r v. Lackman, 39 Mo. 100; State v. Rothschild, 69 Mo. 55; Meyer v. Lewis, 43 Mo.App. 417; Mueller v. Wolff, 56 Mo.App. 40. (6) An instruction should not submit to the jury undisputed facts, nor assume the truth of disputed facts. Windson v. Railroad, 45 Mo.App. 129; Coffey v. Carthage, 186 Mo. 583. (7) Where injuries are not shown to be the direct and proximate results of the alleged negligence, they should not be submitted to the jury as an element of damages. Smart v. Kansas City, 91 Mo.App. 582; Young v. Railroad, 113 Mo. 640. (8) The court, when requested by defendant, should instruct the jury on the whole question of defendant's liability. Clippard v. Transit Co., 202 Mo. 448. (9) Where defendant introduces evidence on a particular issue, it is error for the court to ignore such issue in instructing the jury or to refuse an instruction requested by defendant submitting such issue to the jury. Phelan v. Paving Co., 115 Mo.App. 433; Clark v. Hammerle, 27 Mo. 55; Sawyer v. Railroad, 37 Mo. 240; State v. McKenzie, 102 Mo. 620; Griffith v. Railroad, 45 Mo.App. 574; Schaaf v. Fries, 77 Mo.App. 346; Galbreath v. Carnes, 91 Mo.App. 512. (10) A quotient verdict agreed upon in advance is ground for a new trial; and the incompetency of members of the jury to impeach the verdict is waived unless objected to. Winn v. Reed, 61 Mo. 621; Milburn v. Robinson, 132 Mo.App. 198.

Montague Punch for respondent.

(1) The pleadings and evidence establish a clear right of plaintiff to a verdict. (a) While there is no obligation on a landlord to keep premises in repair, unless he has expressly contracted to do so, yet if he makes repairs, and the same are negligently made, he is liable in damages to the tenant. Finer v. Nichols, 158 Mo.App. 539; Glenn v. Hill, 210 Mo. 291; Little v. McAdaras, 29 Mo.App. 332, 38 Mo.App. 187; LaBrasca v. Hinchman, 79 A. 885; Good v. Von Hemert, 131 N.W. 466; Gill v. Middleton, 105 Mass. 477; Tuttle v. Gilbert, 145 Mass. 169; Carlon v. Bank, 118 N.W. 334, 124 N.W. 91; Callahan v. Loughran, 102 Cal. 476; Gregor v. Cady, 82 Maine, 131, 19 A. 108; Martin v. Richards, 155 Mass. 381, 29 N.E. 591; Blumenthal v. Prescott, 70 A.D. 560; Glickauf v. Maurer, 75 Ill. 287, 91; Evans v. Murphy, 40 A. 109; Walker v. Swayzer, 3 Abb. Pr. 138; 2 Underhill on Landlord and Tenant, 864, 865; 24 Cyc. 1116, 1117; 18 Am. & Eng. Ency. of Law (2 Ed.), 236; 2 Kent's Com. (14 Ed.), 570. (b) How the defective condition of the closet floor caused the board in the floor to break was matter of proof, not of pleading. Galob v. Pasinsky, 70 N.E. 983. (c) When the appellate court remands a cause on the identical petition, it necessarily decides that the petition states a cause of action, and the matter is res adjudicata, and not reviewable on a second appeal, even had it been erroneously decided on the first appeal. Crecilius v. Bierman, 68 Mo.App. 34; Carey v. West, 165 Mo. 452; Gordon v. Burris, 153 Mo. 223; Kerr v. Cusembary, 69 Mo.App. 221, 23; Bank v. Woesten, 176 Mo. 49; Leeser v. Boekhoff, 38 Mo.App. 445. (2) Plaintiff abundantly proved that her injuries resulted directly from the injury sustained. (3) Error in the reception of irrelevant evidence is cured by the withdrawal of the evidence by instruction, when there is nothing to show that it exerted a harmful effect on the jury. Larimore v. Railroad, 65 Mo.App. 167; Clark v. Hill, 69 Mo.App. 541; O'Mellia v. Railroad, 115 Mo. 205; Northrop v. Diggs, 146 Mo.App. 145. (4) If there is any rule of law more firmly established in this State than any other, it is that it is against public policy to allow jurymen to impeach their own verdict. Misconduct on the part of the jury cannot be proven by affidavits of the jurymen. Affidavits of jurors in support of their verdict may be considered, while their own evidence impeaching it must be rejected. Meisch v. Sippy, 102 Mo.App. 567; McCormick v. City of Monroe, 64 Mo.App. 202; Clark v. Famous Company, 16 Mo.App. 467; Jobe's Admr. v. Weaver, 77 Mo.App. 671; McMurdock v. Rumberlin, 23 Mo.App. 528; Winn v. Reed, 61 Mo.App. 626; State v. Gage Bros., 52 Mo.App. 470; Sawyer v. Railroad, 37 Mo. 263; State v. Fox, 79 Mo. 112; State v. Dunn, 80 Mo. 694; State v. Cooper, 85 Mo. 260; State v. Rush, 95 Mo. 199; Proffer v. Miller, 69 Mo.App. 507. (5) If the amount named by each juror is in the nature of a proposition, and there is no previous agreement to abide by the average amount, but the average amount is finally agreed on by the entire jury as their verdict, there would be nothing wrong in this. Such a verdict would be the deliberate judgment of the entire jury which satisfies the law. Fields v. Railroad, 80 Mo.App. 1; Kolb v. Transit Co., 102 Mo.App. 151; Jobe v. Weaver, 77 Mo.App. 666.

NORTONI, J. Reynolds, P. J., and Allen, J., concur.

OPINION

NORTONI, J.--This is a suit for damages accrued to plaintiff on account of personal injuries received through the alleged negligence of defendant. Plaintiff recovered, and defendant prosecutes the appeal.

Plaintiff, a married lady, together with her husband, was the tenant of defendant of a certain dwelling and appurtenances thereto in the city of St. Louis, at the time of her injury. The tenancy was from month to month, under a verbal arrangement, and no special agreement for repairs appears in the case. There was situate on the premises, as appurtenant thereto, a privy, the floor of which had become defective and dangerous because the boards therein were old, worn, and decayed. It appears plaintiff complained of the condition to defendant, and requested that the floor be repaired and rendered safe for use. Defendant acquiesced, and promised that the repairs should be made. The evidence tends to prove that, a few days thereafter, defendant, who also is a lady, undertook to make the repairs, and sent a man to the premises for the purpose. Instead of removing the old floor and laying a new one, defendant's carpenter merely drove some nails into the old and decayed boards, to the end of fastening them in place. After this was done, defendant informed plaintiff the privy floor had been repaired and was safe for use. Thereafter, upon plaintiff's entering the privy, one of the old and decayed boards so utilized in the repair broke under her weight and precipitated her forward with such force as to inflict severe and permanent injuries.

The petition states the facts substantially as above detailed, and it is urged that it reveals no cause of action against defendant. Indeed, though the evidence tends to prove the facts stated, it is argued too that no recovery should be allowed thereon.

There can be no doubt that the landlord is not bound to keep the leased premises in repair, in the absence of an agreement to do so, made at the time of the letting, or thereafter upon a new and sufficient consideration. This being true, an action may not be maintained on account of an injury resulting to the tenant or a member of his family from the mere failure of the landlord to repair the leased premises, for the reason no obligation resting on the landlord is breached by such omission. But, be this as it may, the suit proceeds on another and distinct theory, for it is alleged, and the evidence tends to prove, that, though no obligation whatever rested upon defendant in that behalf, she nevertheless voluntarily undertook to make the repairs and caused her carpenter to do so.

The identical case was here on a former occasion and we so declared the law. Furthermore, we then said: "It is averred in the petition, and the evidence tends to prove that, in repairing the floor of the privy, this carpenter performed the task in such a negligent manner as to render it unsafe, and that the injury to plain...