Fitzpatrick v. Ford, 49713
| Decision Date | 11 November 1963 |
| Docket Number | No. 49713,No. 1,49713,1 |
| Parties | Ronald FITZPATRICK, by His Father and Next Friend, J. B. Fitzpatrick, Appellant, v. Cecil F. FORD and Hazel H. Ford, Respondents |
| Court | Missouri Supreme Court |
Edward L. Simmons, Plattsburg, Sevier & Turnage, Liberty, Walter A. Raymond and Raymond, West & Cochrane, Kansas City, for appellant.
Price Shoemaker, St. Joseph, Alan F. Wherritt, Liberty, James H. Ottman, John C. Dods, Kansas City, for respondents; Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, of counsel.
HOUSER, Commissioner.
Action for damages by two-year-old Ronald Fitzpatrick, suing through his father and next friend, for personal injuries sustained as a result of the collapse of the roof of a porch attached to a farm house owned by defendants Cecil and Hazel Ford. A trial jury awarded plaintiff damages in the sum of $120,000. Defendants' motion for a new trial was sustained by the trial court 'because of error in the giving of instruction No. 1.' Plaintiff appealed from the order granting a new trial. Sec. 512.020, V.A.M.S.
Plaintiff-appellant contends there was no error in giving the instruction; that this was no valid ground for granting a new trial. Defendants-respondents assert that the instruction was prejudicially erroneous as a matter of law; that plaintiff failed to make a case in the first instance; that in any event the verdict is excessive.
Stated in the light most favorable to the prevailing party, the plaintiff, these are the facts bearing on liability: On May 13, 1960, while Ronald was playing on the north porch, the roof of the porch suddenly collapsed and fell on him, inflicting serious injuries. This house, located on a 160-acre farm in Chinton County, was owned by defendants Ford, husband and wife, as an estate by the entireties. J. D. Fitzpatrick, his wife and two sons, including Ronald, lived on this farm for several years under different arrangements with the Fords in different years. The arrangement for the year 1960 was 'a cash deal, rent the farm' for a cash rental of $1,200. The payment of this rental was 'for the farm and for the part of the house' that the Fitzpatricks 'used,' and did not cover 'the part of the house that Mr. Ford used.' At no time from the beginning of their occupancy of the farm did the Fitzpatricks have the use of the entire house. It was always the understanding and agreement with Cecil Ford that the northwest bedroom and the furniture therein were 'his room and furniture,' kept by him for his use as he saw fit. The bed, springs, mattress, rocking chair and two chests of drawers kept in the northwest bedroom were the personal property of Cecil Ford. 'That was their [the Fords'] quarters.' When the Fitzpatricks first moved onto the farm the room was reserved for the Fords' 15-year-old nephew, who stayed in the room and lived with the Fitzpatricks at Cecil Ford's request for a year and a half while finishing his high school course. Cecil and Hazel Ford spent many weekends at the farm, and sometimes visited there during the week. They kept horses on the farm. They would hang their 'farm clothes' in the closet across the hall from the northwest bedroom, which was a part of the portion of the premises reserved by the Fords. They kept clothes in a chest of drawers. They would change clothes in the northwest bedroom, and sleep in and use that room. Cecil Ford had a key to the house. The Fords would come and go, sometimes using the bedroom when the Fitzpatricks were not at home. It was not necessary for the Fords to ask the Fitzpatricks in advance for permission to come in and use the house. At no time was such permission sought. The Fitzpatricks used the northwest bedroom for their own or their family's purposes only once during the four years they occupied the premises, and that use was 'subject to Mr. Ford's objection if he wants to use it.'
This sketch, from a plat in defendants' brief, will assist in an understanding of the physical layout:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
The main entrance to the house--the one ordinarily used by the Fords and the Fitzpatricks--was the door leading into the inner porch from the north porch. There was a door on the south side of the house, opening into the kitchen, but it was not the principal means of entrance. Access to the northwest bedroom through the main entrance was had by entering the door from the north porch and going onto the inner porch, thence into the kitchen, thence into the living room, thence into the children's bedroom and thence into the small hall that led to the door opening into the northwest west bedroom. The west porch was not used. There was a door leading from the west end of the hall to the west porch, but this was permanently closed and nailed shut at all times.
Before the Fitzpatricks moved onto the place the house, 50 or 60 years old, was 'in very poor shape.' Cecil Ford agreed 'to remodel the house all the way through, and everything, he'd keep it up.' He said 'he would take care of the repairs and keep it suitable for [the Fitzpatricks] to live in.' Cecil caused his brother Glenn, a roofing contractor, to roof the porch, a 'lean-to' porch, the roof of which was 'just nailed up to the weatherboarding on the house.' It was supported on the north side by three 4"'X4"' posts. The floor of the porch was made of cement. In the fall of 1959, prior to the injury to Ronald on May 13, 1960, Fitzpatrick told Cecil Ford that Glenn Ford had said that the porch 'needed some work done, * * * needed repairs.' After Glenn roofed the porch Cecil 'fussed about the job he'd' done, saying that it still leaked between porch and house and it was 'running down.' Cecil 'got up there' and nailed a row of shingles across there leading down onto the porch, to stop the water leak. Before he nailed those shingles you could see rotten spots 'up there along the side.' Afterwards, the shingles covered the rotten spots. Later on there was trouble with the roof on the main part of the house. It leaked. It was a flat roof. In the fall of 1959 Glenn Ford, acting under the supervision and control of Cecil and Hazel Ford, changed some rafters, made the flat roof into a slanting roof, and put new shingles on both north and south sides of the roof. Glenn Ford and one Herbert Cook stood a ladder up on the porch, threw the shingles onto the roof, then walked across the porch roof and carried them to the other part of the house. Ford weighed 190 pounds and the bundles of shingles weighed 75 or 80 pounds each. As the two men walked across the roof of the porch it 'gave' or 'sprang' in the middle. Cecil paid Glenn for this work and for the materials. On that occasion Glenn and Herbert installed a 1"' X 4"' brace board, about 5 feet long, slanting up from the house to the north porch roof, on the east side of the porch but put none on the west side of the porch. That board was put on to brace the porch roof. Fitzpatrick did not assist in any of these repairs, or do 'one bit of work to that house.' Cecil Ford also caused storm windows and storm doors to be installed.
On the day of the collapse it was warm and clear and there was no wind. The whole porch roof came loose from the house, came down the wall, and fell on the plaintiff. The roof had been held up by 'just a few spikes' nailed into the weatherboarding on the front of the house. The boards were old and dry-rotted. The spikes were 'old square type nails, clinch type.' They left scraping marks on the front of the house, as the porch roof came down. The angling wooden brace had pulled loose from the porch, and was handing on the side of the house.
Defendants' evidence presented an entirely different set of facts; a direct conflict with respect to the contractual arrangement between the parties, retention of control over the northwest bedroom, agreement to repair and repairs actually made.
Cecil Ford testified that under the arrangement for the year 1960 Fitzpatrick got the whole of the farm, all of the house, and could do whatever he wanted to with it; that no reservations whatever were made. The Fords testified that the two families were all good friends who for years had had good times together, visiting back and forth in each others' homes; that the Fitzpatricks had access to the key to the Ford home in Kansas City; that sometimes the Fords brought groceries to the farm and the two families cooked their meals together and ate at a common table 'just like one big family.' The Fords sought to establish that Cecil did not own the furniture in the northwest bedroom, which they said was used by the Fitzpatrick family 'like most any spare bedroom,' and that while in the summertime Cecil would sometimes sleep in the northwest bedroom, at other times he slept in the living room on the couch; that when it was cold one of the Fords would sleep with the little children (presumably in the children's bedroom) and the other Ford would sleep in the living room on the couch; that when they stayed overnight the Fords would use the Fitzpatricks' bedclothes, and that the Fords used the south door, not the north door, most of the time when entering the house. The sum and substance of Fords' testimony was that there was no contractual reservation of any right on their part to use the northwest bedroom, the entire house being rented to the Fitzpatricks; that on the occasions when they stayed there the Fords were there as close and intimate personal friends of the family, as social guests, not in any relationship of landlord and tenant by reservation of right.
An equally sharp issue was drawn on the question of agreement to repair, and repairs actually made. Cecil Ford flatly denied that he promised the Fitzpatricks that he would keep the house in repair; that Fitzpatrick had asked him to make repairs, or that...
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