Finer v. Nichols
| Decision Date | 30 June 1911 |
| Citation | 138 S.W. 889,158 Mo.App. 539 |
| Parties | ROSE FINER, Defendant in Error, v. CECELIA NICHOLS, Plaintiff in Error |
| Court | Missouri Court of Appeals |
Error to St. Louis City Circuit Court.--Hon. Hugo Muench, Judge.
Judgment reversed and cause remanded.
Stern & Haberman and Vital W. Garesche for plaintiff in error.
(1) The petition stated no cause of action, the objection to the introduction of evidence, the demurrer to the evidence at the close of the whole case and the motion in arrest of judgment should have been sustained. Rhoades v. Seidel, 102 N.W. 1025; Wynne v. Haight, 50 N.Y.S. 187; Nagel v. Davis, 113 N.Y.S. 834; Galvin v. Beales, 187 Mass. 250; Miller v. Woodhead, 104 N.Y. 471; Ivay v. Hedges, 9 Q. B. D. 80; Elbin v Miller, 78 Mo. 371; O'Connell v. Schnepel, 33 N.Y.S. 562; 2 Underhill on Landlord and Tenant, 865; Saffer v. Molter, 124 Ill.App. 21. (2) The plaintiff completely changed her cause of action. Chitty v Railroad, 148 Mo. 75; McManamee v. Railroad, 135 Mo. 447; Dlauhi v. Railroad, 139 Mo. 294; Breeder v. Mining Co., 103 Mo.App. 179; Slaughter v. Davenport, 151 Mo. 26; Ellis v Railroad, 130 Mo.App. 221; Riley v. Railroad, 124 Mo.App. 278; Purdy v. Pfaff, 104 Mo.App. 331; Glenn v. Hill, 210 Mo. 291. (3) The court erred in giving plaintiff's instruction 2. Rapid Transit Co. v. Smith, 86 S.W. 323; Joyce on Damages, sec. 185.
John S. Leahy and Montague Punch for defend- in error.
(1) While there is no obligation on a landlord to keep premises let in repair, unless he has expressly contracted to do so, yet if he makes repairs, and same are negligently made, he is liable for damages to the tenant. Little v. McAdaras, 29 Mo.App. 332; Little v. McAdaras, 38 Mo.App. 187; Glenn v. Hill, 210 Mo.App. 291; Graff v. Brewing Co., 130 Mo.App. 618; Gill v. Middleton, 105 Mass. 177; Mann v. Fuller, 66 P. 627; Carlon v. Bank, 124 N.W. 91; Carlon v. Bank, 118 N.W. 334; Callahan v. Loughran, 102, Cal. 476; Gregory v. Cady, 82 Me. 131; Glickauf v. Maurer, 75 Ill. 289; Evans v. Murphy, 40 A. 109; Martin v. Richard, 155 Mass. 381; Wertheimer v. Saunders, 95 Wis. 573; Wilber v. Follansbee, 97 Wis. 577; Blumenthal v. Prescott, 75 N.Y.S. 710; 2 Underhill on Landlord and Tenant, pp. 864, 65; 18 Am. and Eng. Ency. of Law, p. 239 (2 Ed.); 24 Cyc. Law and Proc. pp. 115, 16. (2) Even though an amendment changes a cause of action, if opposing party pleads over and goes to trial threon, he waives his right to object. Grimes v. Mill Co., 111 Mo.App. 358; Bank v. Crump, 116 Mo.App. 371; Scoville v. Glassner, 79 Mo. 449; Spurlock v. Railroad, 104 Mo. 658. (3) Plaintiff's instruction No. 2 not faulty, because, First. Calls for damages for injury to plaintiff's physical and nervous system and general health, including, but not in addition to, miscarriages, and could not have misled jury. Second. Defendant's instruction No. 2 given, was similar to plaintiff's instruction No. 2 given, hence defendant can not complain. Harrington v. City, 98 Mo. 583; Whitmore v. Lodge, 100 Mo. 36. Third. If defendant considered instruction was likely to be misunderstood by jury, it was her duty to ask modifications and explanations, in an instruction embodying her views. Browning v. Railroad, 124 Mo. 55; Mathews v. Railroad, 142 Mo. 645; Robertson v. Railroad, 152 Mo. 382; Barth v. Railroad, 142 Mo. 535; Longan v. Weltmer, 180 Mo. 322.
This is a suit for damages accrued to defendant in error on account of personal injuries received through the negligence of plaintiff in error.
In the circuit court, the finding and judgment were for plaintiff in the suit, and defendant therein prosecutes the writ of error in this court, as plaintiff in error.
Defendant in error, plaintiff in the suit, is a married woman and together with her husband resided in a tenement owned by plaintiff in error, which was occupied by them under a verbal lease from month to month with plaintiff in error. On the demised premises and appertaining thereto, there was situate a privy, the floor of which became out of repair and dangerous. Though plaintiff in error had not contracted in the lease to make repairs, she nevertheless voluntarily undertook to do so and sent her carpenter there for the purpose. It appears the carpenter performed the task in such a negligent manner as to render the floor dangerous, so that defendant in error broke through the same on stepping into the privy. On the breaking of the floor beneath her foot, defendant in error was precipitated against the side or seat of the outhouse with such force as to inflict a personal injury across her abdomen and to occasion a miscarriage a few hours thereafter.
Besides the original, three amended petition were filed in the case, and it is first argued that the third amended petition, on which the trial was had, is a departure and substituted a new cause of action for the one originally declared upon. It is true the original petition and the first and second amended petitions are not models of good pleading, but, upon looking into all of them, no one can doubt that in each amendment, the pleader adhered to the same cause of action that was defectively stated in the first filed. The grievance complained of, and the amount sought to be recovered therefor, is the same in all, although some of the mere incidents pertaining thereto are varied in the different petitions. The present, or third amended, petition declared upon the same injury and maintains in a general way the identity of the cause of action first stated, so that the character of the proof to maintain either would necessarily remain about the same. The amendment is properly allowed so long as the gist of the cause of action in an amended pleading remains the same as that set forth in the original, although some of the alleged incidents be different from those set forth. [Ingwerson v. C. & A. R. Co., 150 Mo.App. 374, 130 S.W. 411.] Besides, plaintiff in error answered the third amended petition and tried the case throughout thereon as though it adhered to the original cause of action stated. Because of this alone, the point that it was a departure from the original petition and substituted a new cause of action for that set forth therein was thereby waived and is now concluded from review on this writ of error. [See Grymes v. Liebke, etc., Mill Co., 111 Mo.App. 358, 85 S.W. 946; Scovill v. Glasner, 79 Mo. 449; Spurlock v. Mo. Pac. R. Co., 104 Mo. 658, 16 S.W. 834; Farmers', etc., Bank v. Kont, 116 Mo.App. 371, 92 S.W. 724.]
It is neither averred not proved that plaintiff in error contracted, at the time of letting the premises, nor that she agreed at any time thereafter, on a new and sufficient consideration, to make repairs on the demised premises. Because of the omission to either aver or prove this fact, it is argued the court should have directed a verdict for plaintiff in error, for the reason, it is said, no obligation whatever rested upon her pertaining to the matter of repairs for a breach of which an action will lie. 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. [Ward v. Fagin, 101 Mo. 669, 14 S.W. 738; Glenn v. Hill, 210 Mo. 291, 109 S.W. 27; 2 Underhill, Landlord & Tenant, sec. 518.] But the suit proceeds on another and distinct theory, for it is alleged, and the evidence tends to prove, that, though no obligation rested upon plaintiff in error in that behalf, she nevertheless voluntarily undertook to make the repairs and caused her carpenter to do so. 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 of defendant in error resulted from the negligent manner in which the repair was performed. The general rule undoubtedly is, that every person is prima facie liable to respond for an injury which befalls another through his negligence, if the injury is directly traceable to such negligent conduct and the injured party is without fault and rightfully on the premises. In this view, the rule is well settled, even between the landlord and tenant, to the effect that if the landlord voluntarily repairs the demised premises he will be responsible for his want of due care in the execution of the work and if an injury befalls the tenant or a member of his family as a result of the negligent manner in which the repair is made, an action will lie therefor, unless barred by the negligence of the injured party. [See Little v. MacAdaras, 29 Mo.App. 332, s. c. 38 Mo.App. 187; Glenn v. Hill, 210 Mo. 291, 297, 298, 109 S.W. 27.] On this theory, the evidence tends to support the charge of liability on the part of plaintiff in error and that question was one for the jury. So, too, was the matter of contributory negligence on the part of defendant in error. [See Little v. MacAdaras, 29 Mo.App. 332, s. c., 38 Mo.App. 187.]
The case has been three times tried. The first trial was had in 1903 and resulted in a verdict of two hundred and fifty dollars in favor of the plaintiff in the circuit court, which that court set aside. The second trial resulted in a verdict of $ 2500 in favor of plaintiff in the circuit court, which that court set aside for error in excluding from evidence a public record required to...
To continue reading
Request your trial